United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill

The Convener (Ruth Maguire)

Good morning and welcome to the 23rd meeting in 2020 of the Equalities and Human Rights Committee. The first item of business is our first evidence session on the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill, and we will hear from two panels of witnesses. I am grateful to all the witnesses for their attendance.

I welcome our first panel of witnesses, who are Dr Katie Boyle, associate professor of international human rights law at the University of Stirling; Professor Aileen McHarg, professor of public law and human rights at Durham University; Professor Kenneth Norrie from the University of Strathclyde’s law school; and Professor Elaine E Sutherland, professor of child and family law at the University of Stirling. Thank you for joining us.

I remind members that, if their question is addressed to a specific witness, they must identify the witness by name; otherwise, we will work to the order in which witnesses appear on the agenda. If witnesses feel that they have nothing to add in response to a question, they should not feel that they have to comment—please simply say that.

We have a lot to get through and a limited amount of time. I appreciate that we are working with this wonderful technology and that the bill includes technical details, but I encourage members and witnesses to keep questions and answers succinct to allow us to get through as much as possible. Please allow a few seconds for broadcasting staff to operate your microphone before you begin to ask a question or provide an answer.

There is strong support for direct incorporation of the UNCRC into Scots law. What are your views on that approach? What are its potential benefits or disadvantages?

Dr Katie Boyle (University of Stirling)

Thank you for the opportunity to speak about the issue. On the benefits of the bill, it is almost self-evident that, if better rights protection for children is introduced, children will have better access to their rights. What is particularly innovative about the approach is that it uses existing public law remedies, so we are already familiar with the framework and the way in which it protects those rights under the European convention on human rights. There are also innovative mechanisms to ensure that, if something goes wrong, children will have access to a remedy. It is particularly welcome that, if all else fails, there is a remedy in the court—that is a key and important aspect of incorporation.

The way in which the bill operates is that it will embed rights compliance in the work of the legislature, to a degree, and to a greater degree in the work of the Government and public authorities. It will also offer the court a role in protecting rights. That model of incorporation will embed rights compliance across those roles of the state.

Where there is scope to go a little further is in enhancing the Parliament’s role and ensuring that public authorities understand their duties and fulfil their positive obligations, and that the role of the court is clear on what it can do to meet the threshold of an effective remedy. We must also ensure that there is human rights accountability for children if public services are privatised.

The Convener

Professor McHarg, I understand that you have been having difficulties with the technology. Is it okay for me to bring you in now?

Professor Aileen McHarg (Durham University)

I think so, convener.

I do not have a strong view on the desirability or otherwise of incorporating the convention. The bill is interesting from the point of view of domestic protection of fundamental rights. As Dr Boyle said, in a number of ways, it goes beyond existing models in both the Human Rights Act 1998 and the Scotland Act 1998—[Inaudible.]

The Convener

Professor McHarg, the sound seemed a bit fuzzy there. I think that we are losing your connection. If you do not mind, I will move on to the next witness and we will come back to you.

Professor Norrie, will you comment on the potential benefits and disadvantages of the bill’s approach?

Professor Kenneth Norrie (University of Strathclyde)

Good morning, everyone. The advantages of making children’s rights absolutely central to policy making and law making in the way that public authorities operate are self-evident. The question is whether the bill’s approach is the right way to go about that.

I should prefer a different approach. For a whole host of reasons, I am not particularly keen on the structure of the United Nations Convention on the Rights of the Child. One simple reason is that it is worded very much not in terms of rights; primarily, it imposes duties on state signatories to the convention, which of course we might interpret as giving rights. However, to me, good law is accessible law. Particularly when we are dealing with children and their rights, if we want to be able to say that they have rights to do X, Y and Z, they have to know about it. For them to read that the state has an obligation to protect X, Y and Z does not help.

I should much have preferred for the bill to have gone through every one of the substantive rights in the UN convention and converted them into rights. I will give a simple example. One of the convention’s provisions says that state parties have to set a minimum age of criminal responsibility. In Scotland, we have done so very recently—or, at any rate, we increased the minimum age here. It would have been the easiest thing in the world to have said that children below a certain age have a right to have their behaviour dealt with in a welfare-based system rather than by the general courts. That is just one example of what I should have preferred the bill’s approach to do.

My other major problem with the UN convention is a fear that, once it is incorporated, we will think that children’s rights have been sorted and we do not need to go any further. We must remember that the UN convention sets minimum standards. A lot of rights are completely ignored in it, partly due to its history as a worldwide convention that tries to encourage every member state on the planet to buy into such rights.

Two very obvious things are missing from the convention. The right of a child to his or her evolving sexuality or gender identity does not appear; nor does a right not to be forced into marriage. There are all sorts of other things, such that, if we had started afresh and decided what rights were appropriate for children in Scotland in 2020, I think that we would have come up with a very different list.

The Convener

Thank you—that is very interesting. We will go back to Professor McHarg, who is back with us.

Professor McHarg

The point that I wanted to make is similar to Professor Norrie’s. The key way in which the bill’s approach differs from that in, say, the Human Rights Act 1998 is that, for the UN convention, there is no body of authoritative interpretation that the Scottish courts are instructed to take into account. That gives them a wide degree of interpretative freedom. The impact that that would have in practice would depend very much on what the courts do or do not do with it. As Professor Norrie said, if the convention is structured around duties rather than rights, the bill might have less impact than is anticipated.

The Convener

I will bring in Professor Sutherland now.

Professor Elaine Sutherland (University of Stirling)

Thank you for giving me the opportunity to participate in the discussion. I endorse everything that Dr Boyle said. She summarised beautifully the many benefits of the convention and of incorporation.

I take the point that the convention, like any instrument, has the characteristics of its time. Professor Norrie is quite right that the convention does not address squarely issues of gender identity, but there is a lot of other material from the United Nations Committee on the Rights of the Child that elaborates on rights in the convention—[Inaudible.]—for example, and a number of others that allow for protection of those things. We therefore part company there, because it would be unlikely, even if we passed our own statute now, to cover—[Inaudible.]—that we might want to respect for children in the future. An important thing to remember is that there is a living element to the convention, which comes about in a number of ways.

I will take the opportunity to clear up something that leads to misunderstanding about the convention. There are occasions when Scots law already—[Inaudible.]—the convention, and one of the most obvious examples is that, although the best interests of the child are simply a primary consideration in the convention, the welfare of the child is generally the paramount consideration under Scots law. It is sometimes suggested in discussions about the convention that that means that incorporating the convention will reduce children’s rights. I want to make it absolutely clear, in case committee members are not aware of this, that the UN convention makes it clear that, where domestic law gives a child more rights, the convention does not in any way diminish those. I wanted to clarify that, because that misunderstanding floats about.

I also want to make the point that, although there is no court on the rights of the child that is equivalent to the European Court of Human Rights, so we do not have that kind of authoritative statement about interpretation, there are many other tools in the toolbox for interpretation. [Inaudible.]—the general comments and the concluding observations of the UN committee, and there is the protocol 3 opinion of the UN committee under that, which deals with individual cases.

We were asked to keep our answers brief. If you would like me to expand on what I mean by those other resources from the UN committee, I will be happy to do so, but I do not want to run over my time.

The Convener

We will have opportunities to probe matters further as we move through the evidence session. Those were helpful clarifications. We are having a bit of a problem with the sound and picture dropping out, but we are getting what you are saying. If it persists, we might turn off your video so that we can hear you loud and clear, as your words are the most important thing.

We move on to questions from committee members, starting with Mary Fee.

Mary Fee (West Scotland) (Lab)

I want to explore sections 4 and 6 of the bill with the witnesses. Should the interpretation of the UNCRC, which is set out in section 4, be expanded to take account of the general comments and concluding observations of the UN Committee on the Rights of the Child or any other international human rights opinions or treaties? If so, might there be any unintended consequences of doing that?

The second area that I want to explore is the definition of a public authority, which is laid out in section 6. Concerns have been raised about that. For example, we have heard that children’s hearings and other agencies will not automatically be defined as public authorities, which could bring problems and issues. Should the definition be expanded to bring every organisation under the umbrella or scope of being a public authority?

There is a second issue relating to public authorities. Is the bill clear enough about what a public authority should do if it is faced with secondary legislation that is enforced, but is incompatible with the UNCRC requirements?

I am sorry to ask so many questions, but in the interest of time I wanted to get through as much as I could.

Dr Boyle

I am glad that you asked the question about section 4, which my colleagues have already picked up on. I recommend that the interpretation clause be amended. Professor Norrie highlighted that, without clear instructions about what rights mean in practice, it is very hard for duty bearers, the judiciary—when it is interpreting rights—and, primarily, children to know what they mean.

There are different models of incorporation and different ways in which that can be achieved. One is the direct incorporation of the treaty, which is what the bill seeks to do. A way to address what is called the indeterminacy critique—the idea that some rights in international law are too vague—is that we need to be able to have regard to all the different instruments that help to explain the substance and content of rights.

This is not the first time that the issue has been tackled. For example, rights in the South African constitution, which include economic, social, cultural, environmental and children’s rights, are interpreted such that courts must have regard to international law and may have regard to comparative law in order to help them. Although the UNCRC Committee is not technically a court, it takes on a quasi-judicial function and, as Professor Sutherland highlighted, there is a body of jurisprudence under the optional protocol to the convention.

That is not to suggest that other international human rights law, such as other UN treaties, should not be included in the interpretation clause, because I think that they should. We need to have reference to other bodies in order to fully understand how the UNCRC has been developed and interpreted over time, particularly in relation to children’s economic and social rights. I recommend that the interpretation clause be expanded to include treaty body decisions, optional protocols, general comments, recommendations and comparative law.

In relation to unintended consequences, there might be a fear that that would make all those decisions binding, but that is not what an interpretation clause does. It asks the interpreter to have regard to the other instruments in order to help them to understand the meaning of the rights. Ultimately, they can weigh up the different instruments and types of interpretation and then give meaning and substance within the context of Scotland. There is a margin of appreciation of how rights are interpreted domestically—that is how international human rights law works. The more help that is given to the interpreter, whether that is the duty bearer, the child or the court, the easier it will be. I say without any hesitation that it is necessary that there be a more expansive interpretation clause in order for the bill to work.

On the public authority question, the major concern for me is that the model that is employed mirrors that in section 6 of the Human Rights Act 1998. Although that might have been the most helpful way of trying to capture the acts of private authorities that performed public functions at the time, the way in which that has been interpreted by the courts has proved to be extremely unhelpful in knowing who is responsible for what, at any time, when public services have been privatised.

For me, the major concern is that, when children interact with any form of public service that has been outsourced to a private body, they may ultimately not have the human rights protection that they deserve. Different means are available to address that—for example, we might use the more expansive definition that has been developed in case law.

I will not go through the full history of all the cases, but if you look at the case law, from YL v Birmingham City Council to the Ali v Serco Ltd case in Scotland, you will see that the motivation of the private provider currently supersedes the protection of the rights holder—in this case, the children. That needs to be flipped so that the children’s rights supersede the motivation of the private provider. There may be different ways to achieve that aim. If that is what the bill seeks to do, the provision in question needs to be revisited, because the case law does not provide a helpful or stable basis in respect of private functions.

I have spoken at some length. I did not quite catch the end of the first part of Mary Fee’s question. I am happy to come back to that, but I am aware that colleagues will want to comment, so I will defer to them.

Professor McHarg

I agree with what Dr Boyle said. The definition of “public authority” in section 6 is, as Dr Boyle said, based on the Human Rights Act 1998, so I do not think that there is any concern that children’s hearings will not be included in its scope. As far as I am aware, children’s hearings are regarded as a public authority for the purposes of the 1998 act, so that is not an issue.

However, as Dr Boyle said, it is the definition—[Inaudible.]—and it is worth looking at the Victorian Charter of Human Rights and Responsibilities Act 2006, in Australia—[Inaudible.]

The Convener

I am sorry, Ms McHarg, but your sound totally dropped there. I ask broadcasting to cut the visuals, and I ask you to start your answer again so that we can hear you clearly.

Professor McHarg

On the definition of “public authority” in section 6, I agree with Dr Boyle that there is real concern around how that will apply to private providers that carry out functions on behalf of the state. For a model, it is worth looking at the Victorian Charter of Human Rights in Australia, which was drafted with the problems of the Human Rights Act 1998 in mind and makes it much more explicit that contracted-out providers are to be included in the scope of the legislation. In order to prevent the bill from being interpreted in the same way as the 1998 act, the drafting needs to change.

Professor Norrie

My answer to all the questions from Mary Fee is to ask members to remind themselves of what the bill is designed to do. It is not just about giving rights that are enforceable in a court of law. It is also about changing hearts and minds, and the way in which all of us in society, including private authorities and courts, parents and teachers—whoever is making decisions, and policy decisions in particular—put children at the heart of their consideration. I am not saying that children’s rights have the edge, but they should be at the heart of consideration.

If that is correct, it follows that we need as broad a range of sources as possible to help us to interpret the specific provisions. We also need as broad an interpretation as possible of what constitutes public authorities, or bodies that carry out public functions, in order to achieve a real change in the way that we, as a society, deal with children.

I hope that the committee picked up the important point that Aileen McHarg made about children’s hearings, which Mary Fee mentioned. There is no question but that a children’s hearing is a public authority. Section 6(3)(a)(ii) states that “a court or tribunal” is a “public authority”, and there is no question but that a children’s hearing is a tribunal. That is clearly in the bill as it stands.

Professor Sutherland

One thing about being the last to answer is that I am going to use the word “endorse” quite a lot. I echo what Dr Boyle and the other speakers have said, and I think that we are all on the same page in saying that the more tools there are in the toolbox of interpretation, the better.

The person who is doing the interpreting has discretion about what they use and how much they rely on those things, although that is not always true of certain higher court decisions. Generally speaking, however, they will look more broadly at human rights sources, and on this matter they will look particularly at the work of the United Nations Committee on the Rights of the Child and some other human rights bodies. It is very important that the court has that in its mind when it is interpreting rights under the convention. As far as section 4 goes, that is definitely important.

There is one wee technical point that I do not think has been picked up. Under section 4, the sources that the court is referred to are the convention and the first two optional protocols, which have been ratified by the United Kingdom. The wording is that the court “may” take those things into account. I would be inclined to turn that into a “must” or “shall”. That is an important distinction, because it would seem odd, when looking at convention rights, not to look at the convention and, where relevant, the optional protocols.

That is all that I have to say on section 4 except that we should keep the range of sources used in interpretation as broad as possible.

On section 6, I again endorse everything that has been said about where public services have been outsourced to private providers. I agree with the other witnesses that the law has not necessarily ended up where we thought it would. It is very murky and unsatisfactory, and therefore we definitely need to look again at the issue of private providers of public services.

One other point that I would raise is to suggest adding the Scottish Parliament to the list of bodies. That would seem to me to be a beneficial addition, instead of there just being the Scottish ministers and courts or tribunals.

The Convener

Mary Fee, do you wish to come back in?

Mary Fee

The only question that I still have—perhaps the witnesses did not cover this because my initial question was so long—is on what a public authority should do if it is faced with secondary legislation that is in force but appears to be incompatible with the UNCRC requirements. Perhaps the witnesses can briefly touch on that.

The Convener

Katie Boyle, can we come to you?

Dr Boyle

I will defer to my public law colleague, Professor McHarg, on that question. There is an ability to interpret in so far as is possible.

Professor McHarg

There is an interesting difference between section 6 of the bill and the Human Rights Act 1998. The 1998 act gives public authorities a defence if they had no choice but to act in the way they did because of legislation that was in force. There is no such defence in the bill. In that respect, it is modelled on the Scotland Act 1998, rather than the Human Rights Act 1998. That creates an interesting potential anomaly, whereby the Parliament retains the power to legislate contrary to the convention in the future, but ministers do not have the power to act contrary to it. It would be worth while resolving that conflict.

Professor Norrie

Aileen McHarg has given the public law perspective but, from the private law perspective, it seems to me that a public authority has to follow what the law says; it has to follow its duties under primary and secondary legislation. It is not for the public authority to make a decision that legislation is inconsistent with the UNCRC—that is a matter for the courts. I should have thought that a public authority’s safest action would be to follow the law until such time as it was told that that law was inconsistent.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

As we know, part 2 of the bill, rather than requiring the creation of a new body, envisages that existing courts and tribunals will authorise the judicial remedies that are proposed in the bill. Do you think that those existing courts and tribunals are accessible to children and young people? If not, what improvements would be required there or with the bill more generally?

Dr Boyle

The way that the remedies are set out in the bill is what I would call a high-level skeletal framework, which deals with what the court can do with problematic legislation. Under section 20, it can retrospectively strike down legislation that is incompatible and, under section 20(5), it has the power to suspend the effect of those strike-down powers. It can also issue a declaration of incompatibility if, for example, legislation that is incompatible is passed after the bill and it is not possible to interpret it so that it is a compatible subsequent piece of legislation. That is all about dealing with legislation.

Under section 8, courts and tribunals can issue remedies that they deem to be “just and appropriate”. For me, there is an emerging gap relating to how to deal with what would be deemed to be effective remedies under international human rights law. The UNCRC and the UN committee demand that, if we are to incorporate the treaty, we need to make redress available for unlawful acts. The legislative provisions should cover not only the unlawful acts but what happens if the decision maker does not comply with the legislation before it in a UNCRC compliant way. It is about how children access effective remedies when something goes wrong, and not just in relation to those big skeletal acts.

Two things need to be further fleshed out in the bill. The first is that we need to introduce a child-friendly complaints administrative system. The idea is that, if something goes wrong, the first port of call should never be the court. We should first exhaust other administrative mechanisms, which must be sensitive to children’s needs. A review is needed of how that operates in practice, because, as we see from the witnesses today, those rights cut across all different areas of law. It is not just a family law, immigration or education issue; it is about the provision of rights to children across different fields. We need to look at whether the administrative complaints system is child friendly and, again, the UNCRC implicitly requires that system of redress.

Ultimately, and in order for the UNCRC incorporation to work, people also need access through the court to an effective remedy for violations. There must always be a court there as a means of last resort. We are familiar with the idea in section 8 of courts issuing remedies that they deem to be “just and appropriate”. That works in practice in other respects. The courts must consider many different factors and strike a balance in considering what is just and appropriate.

Courts might sometimes be quite deferential in their remedies, which is perfectly okay. The court has a whole list of remedies that it can use. In some instances of UNCRC violation, the court might have to be more interventionist to help children to access a prompt and effective remedy that deals with the issue at hand. Using damages alone will not suffice to meet children’s needs. I recommend either that the bill should include the right to an effective remedy, or that the courts should have to strike the balance of ensuring that remedies are just, effective and appropriate.

Fulton MacGregor

Dr Boyle has helpfully pre-empted my second question. Will the other witnesses, as well as answering the initial question, also go on, as Dr Boyle did, to tell us about the remedies that courts and tribunals could provide, and about how effective those might be in practice for children and young people?

Professor McHarg

The remedies in the bill are largely modelled on those in the Human Rights Act 1998, but there are a couple of important differences.

One difference is in the time limits. Those have appropriately been extended so that the time does not start running out until a child reaches the age of 18.

The other important difference in enforcement is in the role of the Children and Young People’s Commissioner Scotland, who has the ability to intervene in proceedings and to bring those proceedings without relying on a child to do so. That is a huge improvement in enforceability.

With regard to the legislation, the courts are public authorities and so must exercise their powers in a way that is compatible with the convention. That might require them to take steps to improve or change their procedures or to improve accessibility.

In a more general sense, accessibility comes from the availability of finance. It is also a question of people’s knowledge of their rights and obligations. Something that is missing from the bill—although it is in the Welsh legislation to incorporate the convention—is the duty to publicise the rights that children and young people have under the convention. It might be worth thinking about adding that educative duty to the bill.

Professor Norrie

I want to pick up on Aileen McHarg’s point about the Children and Young People’s Commissioner Scotland. That office is essential to the effective implementation of the legislation. There must be a massive and increased investment in funding for the commissioner’s office so that the commissioner can operate effectively for all children and to ensure that the commissioner has the capacity to intervene when appropriate.

The commissioner is central for another reason. One of my fears about any concept of children’s rights is its vulnerability to hijack. Very often, children’s rights are hijacked to serve adult interests, and debates that go to the court, which are structured as if they were a children’s rights issue, are actually nothing to do with the child—they involve adults arguing it out. I will give two examples of that.

A couple of years ago, there was a really interesting case in England in which a child sought a declaration under the Human Rights Act 1998. The child argued that the rule that a sperm donor is not in law the father of the child, which also applies in Scotland, was an infringement of the child’s right to family life. There is an interesting argument to be had about where genetics fits in to how we define parents, and that is how the court dealt with it. That child was three years of age. I said that the child was arguing in court but, of course, the child was not arguing in court; what was really happening was that the adults were exploring an issue for adults.

Another example is from Hungary, which is currently debating an amendment to its constitution to give children the right to live in the gender identity into which they were born. Just think about that for a moment. It is nothing to do with the rights of the child always to retain the gender identity into which they were born; it is about the adults saying, “Let’s not have anything to do with gender recognition, gender reassignment or anything like that.”

My fear is that children’s rights issues will be hijacked. The role of the Children and Young People’s Commissioner Scotland is a crucial protection in that regard, so I would very much enhance that role. There are powers in the bill to intervene, but I would like them to be much stronger.

Professor Sutherland

I will backtrack to where I think Mr MacGregor’s question began. If I understood it properly, it was about how accessible the legal process is to children.

The bottom line is that the legal system is designed by adults for adults. In fact, it is intimidating to a lot of adults, so how much more so must it be to a child?

From the child’s perspective, our problem begins with the fact that many children do not know that they have rights. If they have any concept of rights, they probably do not know much about them, and they do not know what they are. That goes right back to our not educating in schools about children’s rights.

It is a constant frustration to me that children’s rights are not addressed as a compulsory aspect of the curriculum in all schools from an early age. Why that does not happen is a bit of a mystery to me. The United Nations Committee on the Rights of the Child has lots of resources on its website and elsewhere to help design courses that would enable children to explore children’s rights. Those can be used in educating children from a very young age through to more sophisticated education for teenagers. In Scotland, we need to make that a mandatory part of the curriculum so that children grow up learning that they have rights and incrementally learning more and more about them.

On embedding all those things into the whole of Scottish society, the bill and the act that I hope it will become should be accompanied by public education on children’s rights, because it is more than apparent that many adults in Scotland are not getting it, either. On education, the first step to children having any hope of using the legal system is for them to know that they have rights and to understand what their rights are. Along with that goes the education of the adult community, and not just of the professionals, such as school teachers and social workers who discharge particular functions, although they should be included in education that is perhaps tailored to those functions. Education of the whole community on children’s rights is important, because it will be an essential part of the puzzle to make it all coherent.

It is absolutely essential that there is a legal remedy. Being able to go to court is the big stick that makes those who are under duties to do certain things remember that they have to do them. That remedy has to be there in the background, although it should be a last resort. Instead of that, we need child-friendly complaints procedures in all the places where we find children—wherever children are, there should be a child-friendly complaints procedure. Children should not be even thinking of going to court, because it should not get to that point.

Advocacy services are another crucial part of the puzzle. Someone should be there to help a child to pursue their rights. Many parents do that on behalf of children, but we have to remember that the parent is sometimes the source of the problem, so it cannot all be left to parents. There are also children who do not live with their parents. Where the state takes on the caring obligation, whether through foster or residential care, the child must have the opportunity to raise issues if their rights are not being respected. In all those places, we need complaints procedures, and the child needs to know that there is someone independent of the organisation who can help.

Professor Norrie highlighted the important role of the children’s commissioner in that respect, which I completely endorse—there I go with that word “endorse” again—but there must be other people in a position to do that, too. It cannot all be left to the commissioner. We must consider developing a child advocacy service. One is just starting up in respect of the children’s hearings system, which is perhaps a model that could be taken further.

It is important to clarify in the legislation who can bring actions, which might not simply be actions in respect of a single child; it might be actions in respect of groups of children, or a class action approach.

There is a big role for adults in helping children to pursue their rights, which we cannot leave to children alone. A crucial part of that is ensuring that children know that they have rights and know a bit about what they are.

The Convener

Katie Boyle wants to come back in, but, before she does, I say that I endorse what you say about education but it would be remiss of me not to mention the many children and young people whom the committee has met through its outreach work who are very switched on to their rights and are learning about their rights in innovative ways. We have had contact with the Children’s Parliament, the Licketyspit theatre company, Who Cares? Scotland and Aberlour. There is lots of good work going on out there. I endorse your point, but I want to acknowledge the children and young people and their supporters who are already doing that work.

Dr Boyle

I want to pick up on Professor Sutherland’s point about systemic issues and the effectiveness of the current mechanisms that are used. The court already has the power to grant different types of remedies. It can compel things to be done, it can stop things from happening and it can quash decisions. There is the opportunity through the bill for the court to award damages.

What is typical of human rights cases is that the remedy tends to be compensation. That is not a bad thing, as it can help with an effective remedy. However, some of the rights—in relation to the treaty and to international human rights law more broadly—that would be incorporated through the bill would require the court to adapt to new ways of dealing with systemic issues.

I often use the example of the Napier v the Scottish ministers case, which was about prisoners slopping out in prisons. When the case came before the court, the court found that that was a violation of article 3 of the European convention on human rights. The court responded to that by issuing damages to the lead case, and all the others behind that case could seek damages, too. That was a systemic issue; there was a systemic problem in the prisons and, rather than issuing an order for prison authorities to fix the problem, the court responded to it—in a way that was quite right within its sphere of competence—by issuing damages as a way of encouraging the Government to change its behaviour.

Under international human rights law, when systemic issues arise in relation to economic and social rights, for example, you often find that the issue is of a collective nature and it is not appropriate to rely on the individual rights-based model of one person bringing the case and other cases being sisted behind it or on the new Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018, which looks at the individual rather than the collective systemic issue. Therefore there is a lot more work to be done on how to issue structural orders. The national task force on human rights leadership, which I also advise, is looking at that. It is about considering how to respond legally to systemic issues when they arise. For example, in other countries where there are such adjudications, a court might in some way group together cases in which there is a systemic issue and issue a structural order, which may include asking different parts of Government authorities, public authorities and possibly private authorities that perform public functions to do different things to fix the original violation. That is a new way of looking at such issues that deals with the original problem rather than relying on compensation to encourage better compliance. That is something to think about for how we approach the issue and, of course, it would require an adaptation in how the judiciary operate.

Theory and practice tell us that it is better to help the judiciary by explaining what is expected of them in a bill, so the more clarity and the more instructions you can give to help them in their duties, the better. Perhaps there is room to refocus on what it means to be effective and ask what the threshold is for an effective remedy, and there is case law on that. The courts were used to doing that under European Union law, but we have now lost the right to an effective remedy under EU law as a result of Brexit. We have the right to an effective remedy under the ECHR but, again, that was not incorporated as part of the Human Rights Act 1998, so there is a gap in provision there. The UNCRC bill presents an opportunity to address that gap for children.

Gillian Martin (Aberdeenshire East) (SNP)

I have a couple of questions that I will run together, in the interests of time, on who can bring court proceedings and the time limit on them, as set out in the bill. We have already discussed the Children and Young People’s Commissioner Scotland having the right to bring court proceedings. Section 7 of the bill says that an individual or organisation can raise court proceedings in respect of an alleged breach of the duty on public authorities. For judicial review actions, an individual or organisation would also require to demonstrate sufficient interest to be able to bring proceedings. Are you happy with that overall approach, what is your interpretation of what that would mean and how do you assess that? I would also like to hear your views on whether it is correct to exclude the period when a young person is under 18 for calculating the time limit for raising court proceedings under section 7. In our submissions we have had some mixed views on that, so I am interested to know what the witnesses think.

Professor Norrie

I will first take the point about excluding counting the time before the child has reached the age of 18. I think that the bill has to have that. It is a question of limitation and—[Inaudible.]—proceedings if some wrong has been done to a person, and it is entirely appropriate that we do not count time during which a child or young person is under a particular age. This goes back to Professor Sutherland’s point about education, in that children tend not to know what their rights are. They often do not understand that a wrong has been done to them until they are older and more mature. It would be very wrong to have the same period for a wrong done to a six-year-old as a wrong done to an adult. The reason for that is obvious. Therefore, I endorse the provision as it stands.

It generally fits into the legal system as a whole that you have to be personally affected by an issue before you can raise that matter in court. There need to be exceptions to that, and again I come back to the Children and Young People’s Commissioner Scotland. We should not need to wait until harm is done if a body such as the commissioner has identified a rule of law that has potential to do harm. Therefore, I would make exceptions but think that the general principle that a person has to be personally affected is good.

Professor Sutherland

In response to the question about age, absolutely. To pick up on my response to an earlier question, I would say that there are still issues about children knowing what their rights are. There is a big issue with non-lawyers not identifying problems as legal problems. Very often, people identify when something rotten has happened to them, but they might not identify it as a legal problem

There are also obstacles in that, even if a child knew that some legal wrong had been done, they would have to find the right kind of solicitor to take the case and navigate through the legal system. Meanwhile, the clock would be running if we did not have the provision that disregards the period of time prior to the child being 18. Therefore, I am 100 per cent behind the provision.

The objection that I have seen raised is that it will delay legal proceedings. We are all well aware that delays in legal proceedings involving children can be very harmful to the child. There are numerous occasions on which the court has raised that point. Indeed, the Children (Scotland) Act 2020 highlighted that delays in dealing with cases involving children are generally a bad thing and that courts should be aware of that.

However, all that this provision does is give a child a benefit; it does not prevent the child from bringing the case as soon as he or she is aware that it is a possibility. The child can bring the case before the age of 18; it is only that the general time limit of one year to raise a case will not apply to children until they reach the age of 18. Therefore, I am very happy with that provision and do not see the danger. I do not see why it would delay cases, although, in the later part of this morning’s meeting, I think that you will hear from at least one speaker who believes that it would.

The other question is about who can bring proceedings. I can see why the way the bill is drafted is a bit confusing, because I do not think that it is as clear as it could be on that point—what does “having an interest” mean, exactly? There is a body of case law on that kind of thing and, as Professor Norrie pointed out, generally a person has to have some personal interest in a case before they can bring it. They cannot just bring a case on some abstract issue of injustice that happens to bother them.

The whole point about the bill is that it did not adopt the victim test, which is very important. It differs from other human rights provisions in that it does not say that a person has to be a victim. That was a very deliberate decision and the result of a lot of lobbying at earlier stages.

However, that still leaves a lot of ambiguity about the role of third parties bringing cases—class actions—as Dr Boyle explained earlier. There is great value in class actions as a way of having the rights of whole groups of people respected. Therefore, although the Children and Young People’s Commissioner Scotland is mentioned specifically, which is a good thing, more clarification is needed of who can bring the action. The policy memorandum is written in terms of sufficient interest, which would be the usual test, but my suggestion is that it should not be the usual test for who can bring cases. In addition to the commissioner, there ought to be a formulation that would allow other bodies, such as non-governmental organisations, to bring actions in respect of children’s rights, so that there would be a broader opportunity for challenge.

Professor McHarg

There is a misconception about what the sufficient interest test means in judicial reviews. It is a relatively new test that has been interpreted very widely, so it does not necessarily require a personal interest and it allows for representative standing, which means that groups can bring actions on behalf of their members where their members are affected. It also allows for public interest standing, so that people can bring cases if there is a general point of law that needs to be resolved in the public interest. As Professor Sutherland pointed out, the bill does not employ the victim test. Under the Human Rights Act 1998, the victim test has precluded those kinds of representative and public interest cases. The absence of the victim test means that the normal rules of standing in public law and judicial review cases will apply, and that is now interpreted very widely.

The Convener

Can I bring Katie Boyle in now on the questions on who can bring court proceedings and the time limits for those?

Dr Boyle

I do not have anything to add. My colleagues have covered everything in that regard.

The Convener

We will move to questions from Alexander Stewart.

Alexander Stewart (Mid Scotland and Fife) (Con)

Part 3 of the bill refers to the children’s rights scheme and the child rights and wellbeing impact assessment. On the provisions for the children’s rights scheme, it has been suggested that the bill’s language could be stronger. Do witnesses agree with that? Should anything be added to the scheme? What are the witnesses’ views on the legal duty of ministers under the legislation to prepare child rights and wellbeing impact assessments, and to what extent should ministers have discretion in dealing with decisions of a strategic nature in relation to children’s rights and welfare?

Dr Boyle

I will respond on the children’s rights scheme. The idea of the scheme is to help ministers to meet their obligations under the treaty. There is a read-down that the state obligations become obligations of ministers and public authorities so, in a sense, the scheme helps them to take the steps to demonstrate that they are meeting some of the obligations under the treaty. The obligations relate to, for example, participation, the awareness and promotion of rights and budget processes. The bill is phrased such that the scheme “may” take those things into consideration. That might be appropriate for some rights under the convention, but the state has other positive obligations in relation to economic and social rights in the bill, for example.

My concern is that the list in section 11 is not exhaustive and that, in relation to some rights under the convention, there are obligations, not discretionary things that can be taken into consideration. It would be helpful to broaden out an understanding of what the duties mean in practice. It is important that support is rolled out for decision makers, as well as for ministers and Parliament, so that there is understanding of the content of the rights, what they mean and how to meet them in practice.

Other positive obligations include, for example, taking steps to realise rights and ensuring that the state has the mechanisms in place to respect, protect and fulfil rights. For some rights, there is a minimum core obligation—a more immediately achievable level of right has to be achieved, and children should not fall below that level.

There are also progressive duties under international human rights law and the convention that relate to non-discrimination and the state meeting the maximum available resources, which is a necessary component. It should be ensured that resources are deployed in an effective, efficient, adequate and equitable way. Such duties should fall under the scheme. We should also ensure that there is no regression on rights and that there is access to effective remedies.

There are other types of duties under the treaty, so the scheme could be clearer. You could ensure that it is clear that the list is not exhaustive, or further clarity could be provided with regard to the other obligations. As I said, I am not totally comfortable with the idea that the obligations are discretionary rather than compulsory.

The Convener

I will bring in Aileen McHarg on Alexander Stewart’s questions about the strength of the language that is used in relation to the scheme, and on child rights and wellbeing impact assessments.

Professor McHarg

The only point that I want to make is that the obligations apply only to the Scottish ministers. The policy memorandum says that other public authorities will be “encouraged” to do those things, but they are not obliged to do so. That is a gap.

The obvious analogy is with the Freedom of Information (Scotland) Act 2002. All public authorities that are subject to that act have to draw up publication schemes, which is an important way of proactively ensuring transparency, rather than relying on people to enforce rights individually. I would like such things to be more broadly applicable.

The difficulty relating to the definition of a public authority is that, unlike the 2002 act, the bill does not specifically list the bodies that are covered by it. You would need to define precisely which bodies were covered. I would like a broader range of bodies to be included.

In case I do not get to say this later on, I note that it is important that, when ministers make compatibility statements when introducing legislation, they have to reason those statements in terms of the impact assessments. That is a huge improvement on the model that is used in the Human Rights Act 1998 and the Scotland Act 1998, under which reasons do not have to be given. I can see the case for making the obligation to draw up an impact assessment broader, but we will get into definitional issues.

The Convener

I ask Professor Norrie to comment.

Professor Norrie

I do not think that I have anything useful to add to what has already been said.

The Convener

Does Elaine Sutherland wish to add anything on those matters?

Professor Sutherland

I do. I have a couple of terribly technical points, the first of which Dr Boyle covered rather fully. It concerns the difference between the words “must” and “may”. As she said, under the children’s rights scheme ministers “must”—as opposed to “may”—do certain things. I think that we are all very clear on the importance of that distinction, so I will not take up the committee’s time by going into too much detail on it.

There is another low point. It was from section 1 of the Children and Young People (Scotland) Act 2014 that we first got the idea of ministers having to report to the Scottish Parliament on what they were doing on various aspects of children’s rights, one of the most important being what they would do to promote and strengthen such rights out there. That provision requires ministers to report every three years. The 2014 act gave a date for when their first report had to be lodged, which was within three years of the section coming into force.

That approach will go under the bill, because there will be a new approach to reports from the Scottish ministers under the children’s rights scheme. Under that, they will report about what they are doing on children’s rights a lot more—and they will have to do so every year. It will be good to have more frequent reporting and more accountability. However, I can see nothing in the bill that indicates when that first report has to be made. If I recall correctly, all that it says is that ministers must indicate in the scheme when their first report will be.

When that first report must be produced is therefore entirely within ministers’ discretion. Under the scheme, they could decide that they will produce it five years down the road, which would be a longer interval than is provided for under the 2014 act. Thereafter, they would have to report every year. However, at this stage there is nothing to trigger or activate the whole process. Therefore, we need to consider having a provision parallel to that in the 2014 act, which would say that the report had to be produced within a year of the section coming into force.

That brings up another issue that is vaguely off at a tangent, but which I would like to raise now because I am afraid of not getting it in at some point. It concerns the business of ministerial discretion about when things happen. That raises a point about section 40 of the bill, which covers when the act would come into force, assuming that the bill is passed. Again, that is left entirely to ministerial discretion. Although that does not concern the children’s rights scheme, it leaves another aspect to ministerial discretion. That seems to be a flaw that permeates what is otherwise, in many respects, a very good statute. There is too much discretion for ministers on when they have to produce their first report and on when the bill as enacted would come into force.

I am not sure that I have anything to add on impact assessments, save to say that, again, there is an issue with there being too much ministerial discretion. Ministers must prepare such an assessment

“in relation to such decisions of a strategic nature relating to the rights and wellbeing of children as they consider appropriate.”

That is another example of there being huge opportunity for exercising such discretion, which I would like to see being reined in a bit.

The Convener

Katie Boyle would like to add some comments to her previous remarks.

Dr Boyle

In the children’s rights scheme, the reporting procedures and impact assessments help decision makers and duty bearers to comply with their obligations, but they do not dispense with those obligations. There are positive duties that duty bearers must take, regardless of whether those mechanisms are in place. This is just a means of helping with implementation. It does not absolve those duty bearers of other obligations; they must take positive steps.

Professor McHarg highlighted the issue of the public authority. The Parliament is not covered by that definition, and it also has obligations in relation to the treaty that are not in the bill. The administrative sphere of decision makers, including public authorities, must go further than merely reporting. They must take positive steps to fulfil rights. There might be more scope to explore what that means in practice and to help them to meet that obligation.

The Convener

Alexander, do you have any supplementary questions?

Alexander Stewart

No. I am content with the information that has been given.

Alex Cole-Hamilton (Edinburgh Western) (LD)

Good morning. The UN Convention on the Rights of the Child is two things, principally. First, it is an international baseline that the United Nations sets as the standard for children’s rights. The UN says that it will accept nothing less than that, and it wants states to go further. Article 28, on child soldiers, is a good example of where the UK and Scotland do better than the UNCRC. We do not allow children to become soldiers below the age of 16, whereas the baseline is 15. However, we are behind on issues such as the age of criminal responsibility. The UNCRC wants that to be 14; we have set it at 12, but we have not implemented that.

Is it imperative for Scotland to get to the floor on all levels so that we can make a moral claim to have fully incorporated the UNCRC?

Dr Boyle

I am sorry, but I missed the tail end of the question. Could the member repeat it, please?

Alex Cole-Hamilton

Do you think that there is a moral imperative for Scotland to get to the baseline level on all the articles and all the general comments, so that we can morally conclude that we have incorporated the UNCRC into Scots law?

Dr Boyle

The moral imperative is a policy matter rather than a legal one. There is a legal imperative. Whether it is enforceable in law is another matter, but the UK signed up to the treaty, so as an absolute minimum, it has a legal obligation to meet the standards that are set in the treaty, which are minimum standards. It is great if states can go beyond those. The treaty just sets a framework for the minimum standards, but it is a legal obligation.

The bill tries to facilitate an enforceable legal obligation. That would not exist without incorporation. Some parts of the treaty are redacted because of matters that are reserved rather than devolved. For example, the recruitment of soldiers is part of that redaction, if I remember correctly. In so far as it is possible to do so, everyone in Scotland who exercises public authority on behalf of Scottish bodies—whether that be the Parliament, the Government, public authorities or private authorities that perform public functions—should seek to comply with the standards, even where there has been redaction because competence has not been devolved.

Professor McHarg

I do not have a particular view on the issue. Katie Boyle is right to say that there are issues of divided competence.

I would also point out that the Parliament is not under any legal obligation, as a matter of domestic law, to implement the convention. The state is under an obligation, as a matter of international law, to comply with the convention.

Professor Norrie

I want to make two points in response to Alex Cole-Hamilton’s important question. First, the single greatest argument in favour of incorporating the UNCRC is that it turns an international obligation into a domestic legal obligation. That gives it more force. With an international obligation, even though international law is law, politics can get in the way. Governments and states can decide that international law does not apply to them, and there is no enforcement mechanism. The single greatest argument in favour of incorporating the UNCRC is that it turns a moral imperative into a legal imperative.

Secondly, Alex Cole-Hamilton mentioned, quite rightly, that the convention sets minimum standards. There is a provision in the convention—article 41; it is set out in the schedule to the bill—that permits states to go further. I have a suggestion to make, which is to enhance article 41 somewhere in the bill. That goes back to the point that I made some time ago, which is that I fear that parents and others will hijack children’s rights in order to limit children’s rights, for example by arguing that it is a child’s right not to hear people talk in a particular way and not to be exposed to literature that shows that a lesbian, gay, bisexual and transgender lifestyle is a legitimate lifestyle. Arguments such as those limit children’s rights, and we need something in the bill that protects us against that. Article 41 helps to some extent, but I do not think that it goes quite far enough.

I would like an equivalent to section 13 of the Human Rights Act 1998, because that says that courts must pay particular regard to the importance of article 9 of the European convention on human rights. I would like the bill to be amended to say that the courts should pay particular regard to the importance of article 41 of the UNCRC. That would bring it immediately to courts’ attention that article 41 is a minimum standard and ought not to be used in a way that deals with an adult agenda but limits the rights of children.

Professor Sutherland

I agree that the strength of the bill, and the reason it should be supported, is that it is taking that state obligation and bringing it into Scots law. The parallel with the Human Rights Act 1998 makes it very important.

Another benefit of the bill is that, hopefully, it will generate conversations in Parliament, in the community and in schools—wherever you find children—about children’s rights. In doing that, it will raise the profile and the understanding of children’s rights. I come back to the idea that it is not enough to have this stuff in legislation and think that we are done. We need to make it work, so the practice needs to follow through, and the bill contains mechanisms to ensure that that happens. However, we also need to embed it in the community, so that people understand it. That goes back to the point that I made earlier.

On satisfying the minimum requirements of the convention, Scots law should be trying to achieve that, but frequently it should be trying to go further. In my answer to the first question that I was asked, I talked about examples of cases where we have gone further and how that is fine—these things are beneficial. I think that we should see what the convention is asking us to do—or telling the state to do—as a minimum threshold, and go beyond that, where that is possible and appropriate.

Alex Cole-Hamilton

There is another part to that question, after which I will ask a quick follow-up question, if the convener will bring me back in.

I said that the UNCRC was two things. First, it is a baseline. Secondly, it is a living document. Alongside the articles that are enshrined in the convention are three other organic things: the optional protocols, the general comments and the concluding observations from the rapporteur when the rapporteur visits our country. Are the witnesses content that the bill is sufficient to allow Government to reflect on those three organic arms of the convention, such that it will make the UNCRC a living document in Scotland when we have incorporated it?

The Convener

Do you want to direct that question to a particular witness?

Alex Cole-Hamilton

Professor Norrie.

Professor Norrie

Thank you. That is absolutely right. It is really important that Government and the courts and public bodies are directed to as many of the official documents and working papers as is possible. That is the only way that we can identify appropriate trends and gaps in the provisions and then bring them properly into force in a practical, meaningful sense in Scotland. I absolutely agree with that.

The Convener

Aileen, would you like to come in on that question?

Professor McHarg

No, thank you.

Alex Cole-Hamilton

Okay. If no one else wants to come in on that, I will move on to my final question—

The Convener

I am sorry, Alex—Elaine Sutherland wishes to come in.

Professor Sutherland

Yes, we want Government to look at all those things and to be as informed as possible on what the United Nations Committee on the Rights of the Child is telling us. The sad truth as far as optional protocol 3 is concerned is that the UK has not ratified it and does not look as though it is in any rush to do so, and there is nothing that we can do in Scotland to ratify it. It is a matter for the state party whether it ratifies an optional protocol.

For the benefit of any committee members who might not be clear on what it is, optional protocol 3 is about what is called in United Nations-speak a “communications procedure”; it is really about complaints about violations of the convention. We have not ratified it, and Scotland has no power to do so, so we are a bit hamstrung on that one.

The Convener

Katie Boyle wishes to come in, too.

Dr Boyle

The question succinctly identifies a gap. That gap can be addressed by an amendment to section 4 of the bill, in so far as interpretation requires to be undertaken with regard to the UN treaties, treaty body decisions, optional protocols, general comments, recommendations and comparative law. I reiterate what I said earlier about the example from South Africa, where courts must have regard to international law and may have regard to comparative law. That is a useful example to draw on. Section 2 of the Human Rights Act 1998, under which the courts must have regard in interpretation to ECHR jurisprudence, is not dissimilar.

It is a question of ensuring that, when an interpretation is made, that is done in context. Otherwise, it will not work, and we will end up with a Scottish version of the UNCRC that is not necessarily interpreted in its context, which is international human rights law.

Alex Cole-Hamilton

Thank you for those answers.

My final question is about commencement; it is one thing to pass an act but another to commence it. It is now nearly two years since we passed the Age of Criminal Responsibility (Scotland) Act 2019 in the Scottish Parliament and our age of criminal responsibility is still eight. We have not yet made it 12 and I am not clear why that is. Section 40, on commencement of the act, leaves it up to ministers to determine when it will come into force. First, are the witnesses content with that? Secondly, can they point to any barriers or impediments that would create an unnecessary delay in commencing the provisions of the act?

Dr Boyle

Commencement is a policy decision, so I do not have a legal response to that question, other than to say that, ideally, it would be done without delay. Other countries, such as Sweden, have had a run-in period to allow those who will bear obligations under the incorporation act to have time to catch up. My concern is that there have been obligations to be aware of the duties under the UNCRC since 2014, so, ideally, you would commence without delay but, ultimately, that is a policy decision.

Professor McHarg

There are provisions on the statute books that have been languishing unimplemented for a lot longer than two years, so that is an issue at times.

The argument for a delay in commencement would be to allow public authorities to get up to speed with their obligations under the act. In all the big changes in public sector duties over the past 20 years, there has been a delay. There was a year or so for the Human Rights Act 1998, three years for the Scottish freedom of information legislation and five years for the UK freedom of information legislation. If we go back to the Equal Pay Act 1970, there was a five-year delay in its being implemented.

If you were concerned, the obvious thing to do would be to set a date by which particular provisions had to be brought into force, but it would be reasonable to give a fairly substantial period before implementation, to allow proper compliance with the legislation.

Professor Norrie

I would prefer a specific date, rather than it being left to ministerial discretion, because a specific date focuses people’s minds. A reasonable—and reasonably short—period after royal assent should be allowed.

Professor Sutherland

Earlier, I mentioned that I did not like the discretion that was left to ministers. I understand that public authorities need to take on board what they have to do, but they have been aware of the convention since well before the legislation in 2014, so it is not coming to them out of the blue. There should perhaps be a period before implementation, but it should be very short. It should be specified in the act that implementation should take place within a certain period after royal assent, rather than it being left to the discretion of ministers.

The Convener

Thank you. That draws our first evidence session to a close, and I thank Dr Boyle, Professor McHarg, Professor Norrie and Professor Sutherland. I appreciate your joining us so early this morning and your perseverance in the face of our technical difficulties. If there was anything that you wished to share but you did not get the opportunity to do so, please correspond with the committee. Likewise, we might follow matters up with you.

I suspend the meeting to allow us to set up for the second panel.

The Convener

Welcome back, and good morning to our second panel of witnesses. They are: Morag Driscoll, from the child and family law sub-committee of the Law Society of Scotland; Janys Scott QC, from the Faculty of Advocates; Andy Sirel, from the Scottish refugee and migrant centre at JustRight Scotland and Professor Kay Tisdall who is a professor of childhood policy at University of Edinburgh. Thank you all for joining us this morning.

I will invite members to ask questions. If a question is directed to a specific witness, the member will identify that witness. Otherwise, we will work through the witnesses in the order in which they appear on the agenda. We need to conclude this session no later than 11:45, so it would be helpful if we could try to keep questions and answers succinct. There is no need to adjust your microphone or camera—broadcasting colleagues will do all that.

There is strong support for direct incorporation of the UNCRC into Scots law. What are witnesses’ views on the approach that the Scottish Government has taken? I am particularly interested to hear what you feel the benefits are and whether you think that there are any disadvantages to that approach.

Morag Driscoll (Law Society of Scotland)

Thank you very much for inviting me today. The law society is very much in support of the bill and—[Inaudible.]—more accessible and better recognised in Scotland.

Can you hear me?

The Convener

You are coming through, but it is crackling a little bit. If that continues, I will ask broadcasting to cut your video so that we can hear you clearly.

Morag Driscoll

All I had to say was that the law society welcomes the bill.

The Convener

Do you see any disadvantages to the approach that is being taken?

Morag Driscoll

I listened to the earlier part of the meeting, and, to use Elaine Sutherland’s words, I endorse the comments that were made during that session.

I do not feel that I can answer the question in great detail at this stage, so I will pop it on to Janys.

Janys Scott QC (Faculty of Advocates)

I welcome the opportunity to give evidence on the bill on behalf of the faculty. The faculty very much respects the rights of the Parliament to set its policy on incorporation of the UNCRC.

In response to the question about benefits or disadvantages, I would frame them as “challenges”, because practitioners are being set the challenge of dealing with translating an aspirational convention into rights in individual cases.

It is helpful that the Parliament has chosen to follow an established path by referring to the Human Rights Act 1998. An example of that, which has not been mentioned by my academic colleagues, is that section 19 of the bill adopts the model from the Human Rights Act 1998. Section 19 says:

“So far as it is possible to do so ... legislation”

is to be

“read and given effect in a way which is compatible with the UNCRC requirements”.

That will enable us to face the challenge that the Parliament has posed us by, if appropriate, reading down the legislation. That is a very powerful thing to put in the hands of the courts, because it means that at court we can take a red pen to or read in passages of legislation that will enable the UNCRC requirements to be better met.

Andy Sirel (JustRight Scotland)

Thank you, convener and committee members, for inviting me. JustRight Scotland welcomes what is an extremely strong bill, notwithstanding the recommendations in our written evidence, which we will make again today.

We are in favour of the broad, maximalist approach. In particular, we appreciate the bill’s distinct proactive and reactive elements. The upstream measures—the children’s rights scheme and the child’s rights and wellbeing impact assessment—are really important, because we hope that they will help to obtain compliance at an initial stage of policy making and law making and help to iron things out before they come into force.

As a litigator who represents children, I do not want to go to court for children; we avoid that at all costs, so while it is great to have that upstream dynamic, we need the downstream reactive measures. We need enforceability, and the bill is strong on that. It uses language that is familiar to us as human rights practitioners, and it uses remedies that we have used before, albeit in slightly different ways. It would create positive changes to some existing processes, with regard to issues around standing and time limits, which I would like to speak about later. It would change things dramatically. It would allow me, for example, to go to court and say to a judge, “This is a violation of the UNCRC.” At the moment, the judge would say, “That is all very well, thank you, Mr Sirel, but I can’t do anything about that.” After the bill is passed, the judge would be able to act—that is it in a nutshell. We welcome the bill.

Professor Kay Tisdall (University of Edinburgh)

I want to check that you can hear me.

The Convener

Yes, we can hear you.

Professor Tisdall

As you will have seen in our evidence, we think that it is absolutely wonderful to have the bill and we only want it to be strengthened through the legislative process. To give an example of that, as the Observatory of Children’s Human Rights Scotland, we were recently commissioned by the children’s commissioner to do the CRIA that was submitted to the committee, as you know. That underlines the fact that taking a children’s rights approach makes better policy and, we hope, better practice. From carrying out the independent CRIA, it became apparent that, in times of crisis, there are issues that are not paid sufficient attention, from schools being open to provisions for children affected by domestic abuse. That CRIA experience and focus on children’s rights drew our attention to that, leading us to make the real differences that are really important to children.

The Convener

I will bring in Mary Fee.

Mary Fee

Thank you, convener. I want to explore two areas with the witnesses, the first of which relates to section 4 and the interpretation of the UNCRC requirements. Do witnesses think that the interpretation should be expanded to take account of general comments or concluding observations? If so, might there be any unintended consequences of doing that?

Secondly, on public authorities, witnesses who listened to the previous evidence session will know that I asked those witnesses whether the definition of “public authority” should be expanded to take into account every organisation that has contact with a child, whether it is a private organisation, a third sector organisation or the children’s hearings system. I am particularly keen to hear the Faculty of Advocates’ view on children’s hearings, because it was the faculty’s evidence that queried whether the children’s hearings system would be included.

Finally, I would be grateful for the witnesses’ view on what a public authority should do if faced with secondary legislation that is incompatible with the requirements under the UNCRC.

The Convener

Mary Fee mentioned the Faculty of Advocates, so we will go to Janys Scott first.

Janys Scott

I will deal first with general comments. Those are helpful as interpretive instruments; it is useful for a court to have all the assistance that it can get in interpreting a particular piece of legislation, as long as that element is not determinative. It would be difficult if that were the case—one would not want to have an external body dictate to Scottish bodies what they should do. Helpful, yes—determinative, no. General comments should be taken into account, by all means, but within the domestic context.

With regard to the definition of “public authority”, Kenneth Norrie was right to say that a children’s hearing is a public authority. I am trying to find whereabouts in its submission the Faculty of Advocates mentions tribunals—I do not think that it was quite in that context. I will come back to that in writing, if I may, but I do not think that the faculty mentioned tribunals in that context specifically.

One of the points that arose in the academic discussion was what to do about private organisations exercising public functions on behalf of public authorities. It is important to clarify that, if a private organisation is exercising a public function, it is to be treated as a public authority. That is vital to the operation of the bill.

I hope that that covers all the points.

Mary Fee

Yes.

The Convener

We will go to the other witnesses, starting with Morag Driscoll, for comments in response to Mary Fee’s questions.

Morag Driscoll

I fully agree with Janys Scott. As Elaine Sutherland said earlier, the more tools that we have, the better. Again, general comments should not be determinative, but they should be available to the court to assist its understanding of the meaning of the UNCRC, which is, of course, a flexible document. If general comments come out, we would be ignoring a valuable resource if we did not include them in consideration.

I agree in respect of private organisations that carry out functions. The best illustration of that would be services that provide advocacy for children in children’s hearings. If they are carrying out what is, in effect, a public function, they should be obliged, as public organisations are—[Inaudible.]

We would be ignoring the people who are at the coalface—[Inaudible.]

Andy Sirel

With regard to section 4, which is “Interpretation of the UNCRC requirements”, I agree with Morag Driscoll and Janys Scott. That point speaks to a question that Alex Cole-Hamilton asked of the previous witnesses. He talked about the convention as a living instrument, which means that the scope of the rights develops gradually as time goes by, in alignment with societal attitudes. That is a well-known autonomous concept in international human rights law; it is applied in the context of the European Court of Human Rights.

The policy memorandum to the bill, at paragraph 144, highlights the need to emphasise

“on the face of the Bill that the rights ... remain within their context”,

and states that those rights must be looked at in the context of

“the whole UNCRC and optional protocols”.

The context is not just local.

In the context of the European convention on human rights and the Human Rights Act 1998, our courts are required, under section 2 of the 1998 act, to take account of judgments from the Strasbourg court: the European Court of Human Rights. Those cases—whether they are against the UK, Hungary or Azerbaijan—are not determinative, but they must be taken into account.

We do not have an equivalent in the bill, and we do not really have an equivalent of the European Court of Human Rights in the context of the UNCRC. What we do have are concluding observations, general comments and other interpretative sources. That is why those elements are important and should be included in the bill, because that would allow our courts to look to such things to see a modern manifestation of what the rights look like now and apply that to the Scottish context. I agree with Janys Scott that those elements should not be determinative, but should be a source of inspiration.

With respect to section 6, on public authorities, I have sympathy with the drafters of the bill. I appreciate the intention behind keeping the wording as broad as possible, and I agree with what the policy memorandum says about the intention, but I worry about how the provisions will work in practice.

There were references in the policy memorandum to a long history of litigation around what a public authority is. That long history has not left us in a settled—[Inaudible.] Just last year, the inner house and the outer house of the Court of Session were in complete disagreement on the fundamental test that should be applied. They had differences of interpretation on the test. If we still have Scottish courts disagreeing with each other on the same set of facts after 20 years of litigation, that is problematic.

It might be helpful for the committee to look to other sources of inspiration. In its written submission, the Scottish Human Rights Commission give a very detailed assessment of the issue, and JustRight Scotland did the same in our submission. Down south, the Joint Committee on Human Rights has looked at the issue twice and has suggested wording. I like the wording that refers to a contract or other arrangement with a public authority that is under a duty to perform the function.

The problem is that, if we do not have something more specific and we take a slightly inconsistent or unclear approach in the courts, that will leave us with a lack of certainty about who is under the duties and when. That is not a very good place to be. We want local authorities to be certain about what they are doing in relation to their corporate procurement, we want private parties to be certain about their obligations when they enter into a procurement exercise with a local authority, and we want children, young people and families to understand when, and in what circumstances, they are able to access their rights.

In the children’s sphere in Scotland, there are private foster care placements, private care homes, social work functions and aftercare functions that are completely outsourced to charities. There are mixed models. Leaving it to judicial interpretation has not got us into a very good place, so additional wording in the bill on the issue might be useful.

Professor Tisdall

I will address the first two parts of the question. As the committee will know from our evidence, we advise that courts should have a duty to have due regard to the general comments, the concluding observations and the decisions under the third optional protocol.

For example, we recently made suggestions about the bill that became the Children (Scotland) Act 2020 in relation to family law. It was incredibly useful to the discussions to consider the general comment on article 12, in order to realise that there should not be a threshold that has to be met in relation to a child’s capacity before their views are considered. That shows the value of considering such comments, and it seems that the courts having a duty to have due regard to them would be an appropriate balance. As you know, we think that that duty should also be applied in relation to the children’s rights scheme and the children’s rights and wellbeing impact assessments.

The public authority issue seems to be very serious, as Andy Sirel has documented. It is really important that there are firm provisions on that in the bill. It is clear that a lot of children’s lives are affected by private organisations that arguably carry out public functions, including the provision of child care, housing and residential care. That is a key issue on which we need to follow the Scottish Government’s intention, in order to ensure that the bill is clear.

The Convener

Mary, do you have any follow-up questions, or are you content with those answers?

Mary Fee

I am content. I am very grateful for the comments on the definition of a public authority. We will take much more evidence on that and give it careful consideration.

The Convener

Thank you. With Fulton MacGregor’s permission, I will bring in Gillian Martin before him, as she is unable to stay for the whole session.

Gillian Martin

I am grateful that you are able to bring me in early, convener.

Section 7 says that an individual or organisation may raise court proceedings in respect of an alleged breach of the duty of public authorities. The bill also specifically empowers the children’s commissioner to raise such proceedings. For judicial review actions, the Government’s policy intention is that any individual or organisation would require to demonstrate sufficient interest to be able to bring such proceedings. How do the witnesses interpret that? Is it clear enough what sufficient interest is, and are you happy with the overall approach, including how the Government’s policy intention is given effect to in sections 7 and 10?

Supplementary to that, I ask about timing. Submissions to the committee have had mixed views on whether it is correct to exclude the period when a young person is under 18 when calculating the time limits for raising court proceedings under section 7. What are the witnesses’ opinions of when it should be possible to initiate court proceedings?

Morag Driscoll

This is complex stuff, as we heard in the earlier part of the meeting. It would be unfair to treat a child in the same way as an adult when it comes to time limits. There are also concerns about the potential of somebody waiting 10 or 15 years to bring a proceeding, but that is likely inevitable. However, I would suggest that it is entirely appropriate to keep the time limit for children. There are some practical issues with the operation of section 7 because of the potential for delay. When it comes to early action by children, six months in the life of a child is like three years for an adult, so delay must be avoided. However, the remedy in the bill must be retained. It is, of course, discretionary—it is decided case by case—and it is important that courts retain that discretion.

On the first question, the children’s commissioner is the logical person to initiate such proceedings, but I agree with what was said in the earlier session about the potential for class action. We do not want the problem of adults using the legislation to export issues that are really for adults. However, there will be times when a problem becomes apparent, and perhaps a charity that deals with that area would wish to raise a proceeding on behalf of children who are affected by that problem or children throughout Scotland.

Then again, in many ways it is a matter for the courts to say whether that is acceptable. Perhaps there could be provision for discretion, or some guidance. I would rather leave that aspect to Janys Scott, who would be the sort of person doing it.

Janys Scott

The provision relating to the Children and Young People’s Commissioner Scotland is most welcome. When I was giving an opinion on the equal treatment issue, I was conscious that the commissioner in Northern Ireland had tried to challenge a similar deficit in Northern Ireland law and had been knocked back on the ground of lack of interest. It was an appalling prospect that one had to wait for a child victim before one could challenge something that was deficient in terms of children’s rights. Allowing the children’s commissioner to be proactive on that point will be hugely important for the implementation of the bill and the recognition of children’s rights in Scotland.

On the question of sufficient interest, the courts, as you can appreciate, interpret that very broadly. It is a question of striking a balance so that we do not admit busy-body actions, where somebody who does not have a direct interest raises proceedings, but we allow somebody who has an interest to intervene in proceedings and assist the court in reaching a decision. That is a balance to be struck in relation to instigation and intervention.

On the timing issue, the problem is that one has to look at what remedy one is asking for. If one is asking for a judicial review remedy, one is saying that a decision has been reached by a public authority that is unlawful and that, therefore, it requires to be addressed or struck down—an order requires to be given to say, “Don’t do this,” or, “Please do that.” If you are looking to address an unlawful decision, it is no good waiting 10 years, because we want that to be done there and then, and if you wait 10 years, it is going to be entirely academic because the whole point will be lost. It will be lost for the child and it will be lost for the public authority. It will not be conducive to good administration or the proper recognition of children’s rights to bring up a stale case 10 years later when the whole point is gone. Therefore, if it is a judicial review remedy, there is not much point, frankly, in saying that the child can bring it up, or it can be brought up on behalf of the child, 10 or 15 years later.

Damages are a different issue, because you might want to say that, 10 years ago, a child suffered a wrong, which has not been properly recognised, and that we can now recognise that in damages. I can see that argument. On the other hand, the judgment in the case of A v Essex County Council in the Supreme Court reasoned that it would not allow the case to be brought up after the end of the year’s time limit because the amount involved was going to be quite small and it would be disproportionate to require a public authority to go back, potentially many years later, to consider the damages question.

Therefore, on judicial review, the answer is pretty clear that matters ought to be dealt with quickly and that there is no point extending the time limit. On damages, there is a proportionality issue to be addressed, and you might want to look at that with regard to permitting the court to hear a late claim if it is considered appropriate. However, leaving it open in that way will potentially cause more problems than it will address.

The Convener

Andy Sirel, I will come to you now on Gillian Martin’s points about who can bring court proceedings and the time limits.

Andy Sirel

On the first question about sufficient interest, I like that part of the bill. I like the fact that the victim test, which we find in the Human Rights Act 1998, has not been included. It is a significant widening of access to justice. I hear what you are saying about what “sufficient interest” means. As a lawyer, I am not particularly vexed by that issue at the moment because, as was said by Janys Scott and, I think, Aileen McHarg on the previous witness panel, the courts, through AXA General Insurance Limited and others v the Lord Advocate and others and Walton v the Scottish ministers, have interpreted “sufficient interest” pretty widely, to be honest. As a lawyer, I feel that we have a good sense of what it means in practice. However, I have a slight concern about the broader on-going UK-wide discussion, emanating from the UK Government, about looking at judicial review and standing and who can take cases. I have a slight concern about the direction in which that is going, which might look to narrow the definition of “sufficient interest”, and that could play out further in the courts. I am not sure what we can do about that. Perhaps a means of moving it forward in the bill would be to include the words “sufficient interest”. That might be helpful but, again, if the scope narrows in the courts, that does not take us much further. Therefore, I have a slight concern about that but, as it stands, sufficient interest is good.

It is a significant move forward that a child does not need—[Inaudible.] I will give a quick example: I am working with an asylum-seeking young person, who was dispersed this summer into adult accommodation in a hotel in Glasgow that was in terrible condition. My colleagues and I were looking at the prospect of bringing a case to challenge the action of holding asylum seekers, never mind young people, in hotel accommodation with no money. My client was undergoing numerous types of legal process at the time—the age assessment, the asylum process and so on—and he was very unwell and suffering trauma. He was not really in a place to even have the capacity to instruct me to take another case challenging his accommodation. If we did not have the victim test, my organisation or another organisation would perhaps be able to take that case on his behalf. That is the difference; it is substantial.

With respect to the time limits, I note—with great trepidation—that I will probably depart from Janys Scott’s view; I do not often do that, but I have to do so here. There are two broad reasons why I am in agreement with what is in the bill in respect of section 7 on time limits, the first of which Professor Norrie flagged during the earlier panel. It takes into account the evolving capacity and maturity of children and young people as they get older, allowing them to have a say on acts that were done to them when they were too young to take any action themselves. The fundamental aspect—[Inaudible.] That is the first, very basic point.

The second point speaks to the balance of power, which we need to bear in mind and remember. The balance of power most definitely favours public authorities or providers and not the child. There is, of course, a requirement for a level of certainty in order to facilitate good governance. I believe that the bill does not place an onerous burden on public authorities, especially when considered next to the onerous burden that is placed on children to meet strict time limits.

I cannot recall who, but someone on the previous panel described the legal justice system in this country as designed for adults by adults. That is true. I will give the committee a practical example from our own recent experience, which I am afraid is not unique; I could regale the committee with examples all day. This example concerns a child who, having escaped a cannabis cultivation situation, is living in adult accommodation. They were age assessed by local authorities as being over the age of 18 and the assessment outcome was communicated to them verbally through an interpreter. The person therefore knew the outcome of the assessment but did not quite grasp the reasoning, and they were not provided with a written report for another four weeks.

That young person has no experience of living in Scotland, no money, no English language, no education, no social worker, limited practical support and serious trauma. They were at continued risk of retrafficking. When they were eventually referred to my service and we attempted to challenge the assessment in question, the local authority fought hard to knock the case out on the basis of its having been submitted outwith the three-month time limit, in its interpretation of the time limit. The court applied the law and noted that the time started running from the date that he was told of the decision orally and not from the date that it was written to him. That is an application of the law. In the specific facts of the case, it extended the time limit.

There are key things to take away from that. Children and young people are at an inherent disadvantage. Very often, the support that they receive is from the corporate parent against whom they would be taking a case. Many children are looked after and guided by that corporate parent. They may be unaware of their ability to take a case or fearful of doing so. They therefore need an independent third party to help them access that—[Inaudible.] Then there is the bureaucracy: we need to instruct a lawyer, qualify for and obtain legal aid and engage an advocate. The real burden therefore lies with the child and not the public authority.

The second point from my example is that public authorities will use every tool in their legal arsenal to defend a litigation. It is right that they are able to do so and it is right that their advocates—whether that is Janys Scott or anybody else—and legal team advise them as such; that is fair and proper. If the tool is in the shed, they will use it, regardless of the age of the child. There should not be any uncertainty about that.

The current law on time limits in Scotland is robust. Janys Scott’s example from the Supreme Court is one example of that. The outer house held this year that time limits run from when a decision is made and not even from when a person knows about it. As they are, those time limits and strict procedures represent at present a barrier to children taking cases.

Other hurdles need to be cleared to bring a claim for judicial review. In evidence that I have read, there are examples of cases being taken 15 years later. To bring a judicial review, the young person needs to prove merit and, if a case is stale, that could be taken into account by a judge at the permission stage.

The committee has two options: leave it the way it is or, if you are not minded to do that, make the discretion to extend far wider and more explicit to take into account children’s specific circumstances.

I am sorry for my long answer.

The Convener

It was very helpful. It aids the committee to have specific examples of what the issues mean in real life and to young people, so that we do not talk about it in the abstract all the time.

Professor Tisdall, is there anything that you wish to share with the committee on Gillian Martin’s questions on court proceedings and time limits?

Professor Tisdall

I have had the benefit of listening to today’s evidence sessions, and I endorse the discussion about sufficient interest and ensuring that the intention on that is clear in the bill.

On time limits, I am persuaded by Andy Sirel’s presentation. We know from the research evidence that many children do not realise until they are older that their rights have been breached, which is important for the Government’s intention in regard to time limits. I will pick a second example of that, which is of power imbalance. We have heard from looked-after children that they might find it difficult to take an action against their corporate parent until they are older. That is another example of why we need to take account of children’s perspectives.

Fulton MacGregor

I will continue with questions onf the accessibility of courts and tribunals to children and young people, which I asked the earlier panel of witnesses and which follow on nicely from the exchanges that we have just heard. Are the existing services accessible? If not, what improvements are required? We heard a lot of good evidence on that during the previous evidence session. Can the witnesses think of specific ways in which the Scottish Courts and Tribunals Service could be made better? For example, in the criminal justice world, there is a lot of talk about the barnahus model. Should we be considering that to enable children to access their rights?

Morag Driscoll

It is always difficult. Law, by its nature, tends to be complex, and the interpretation of statute is not particularly child friendly. Some improvements have been brought in through the Children (Scotland) Act 2020, which gives children more choice about how they express a view.

We have to remember that there are different sorts of rights. Children may have passive rights such as their right to be educated. We have a duty to ensure that they are educated, but the child does not have to take any active steps in that regard, as it is up to the grown-ups to do it. Amnesty writes that the child needs to take a step to give their view, to ask to be excused from a hearing or to make the complaint in the first place.

We are asking children to participate in what is a complex and adult forum. We have made improvements, but we are not there yet. The children and young people who have come forward to the committee are not the majority, unfortunately. Many children, especially those who live with trauma or who have certain types of disability, are less likely to be aware that something has gone wrong or that they had a right to something, and they are less likely to understand their rights or the context. Their position is also very much dependent on the services that we provide. Only now—nine years after the 2011 act came into force—are we providing advocacy services for hearings.

The situation is difficult, and we need more understanding among those who provide services for adults that we need to observe children’s rights. I will give an example. As well as a right to attend children’s hearings, children have a duty to do so, from which they can be excused under certain circumstances. However, in my experience, it is not at all uncommon for children to have been excused without having been asked whether they wanted to go. Or they might have been excused and have said, “But I wanted to go,” and an overprotective adult has told them, “No. You have been excused—you are not going.” It is therefore not just a matter of giving a child a right; we must have people who are able to make that right real and enable the child to take the steps that they need to take. That is why we need such duties to be made clear in the children’s rights scheme, which is the aspect that we will consider next.

However, we also want to prevent problems before they get to court. Earlier in the session, someone talked about the need for a child-friendly complaints system. In our response to the committee’s call for views, we asked whether we should have a child-compatible way of doing that instead of adapting for children courts that have been designed for adults, or the other way round. Which way should we go? Too often, we try to put on such problems a bandage with a teddy bear on it, rather than ask what children actually need to enable them to exercise their rights. Also, they might already be dealing with difficult and complex situations. What should we do in the case of a child who temporarily loses capacity due to trauma?

The situation is very complex, but the bill will be a big help. I am so glad that it grants the Children and Young People’s Commissioner Scotland the powers that we have discussed. However, when we talk about accessibility, I sometimes wonder whether we are coming at it from the wrong angle. We should look at what children need and how we can adapt the system to the child rather than create ways for a child to adapt to the adult system.

I am sorry to have gone on about that—it is a bit of a hobby horse of mine.

Fulton MacGregor

No—that was really useful.

Janys Scott

I should declare an interest, because my primary area of practice is family law. Over the years in which I have been in practice, I have seen a culture change, which I think we need and which is being encouraged through the bill. We have seen courts being more willing to hear from children and to have them as parties to proceedings. In recent years, I have also represented more children.

However, it is fair to say that the position across Scotland is quite patchy, as will always be the case in a cultural context. One thing that will help that hugely is the empowerment of the Children and Young People’s Commissioner Scotland, who will have a big role in assisting children if they wish to participate. The bill is therefore a step in the right direction.

I would like to go back to Mary Fee’s question. I have discovered where the question about tribunals came from. It is based on section 9 of the bill, and it concerns whether a children’s hearing is exempt from awarding damages or whether it counts as a tribunal and therefore cannot be asked to award them. It might be worth clarifying that.

The Convener

Does Andy Sirel have anything to add in response to Fulton MacGregor’s question?

Andy Sirel

I have a couple of short points to make. I endorse what Morag Driscoll and Janys Scott have said. In particular, I agree about the existence of culture change, which I, too, have seen.

More than ever, we are able to ask questions and to use existing court rules in order to make courts child friendly. Whether that is the right approach and the right lens through which to view things is a different matter, though.

Morag Driscoll asked whether we should adapt for children courts that have been designed for adults or whether we should create something else for children. However, I am not particularly qualified to offer a view on that.

On the bill, and in this evidence session, there is a distinction between incorporation and implementation—between what should be in the bill, in order to make existing remedies more accessible, and what comes after the bill. Measures in the bill, including the time limit, the beefing up of remedies, the provisions on strikedown and making declarations of incompatibility more robust, improve the quality of the remedy.

Declarations of incompatibility, as they are defined in the Human Rights Act 1998, are not compliant with the right to an effective remedy under the European convention on human rights, as is shown, for example, in Burden v United Kingdom, from 2006. The additional requirement for ministers to report on a declaration of incompatibility is a positive step. It means that there is an imperative for something to be done. I think that the bill could perhaps go even further and say that they should do it.

We have learned hard lessons in Scotland on declarations of incompatibility. For example, a declaration of incompatibility was set down in 2007 in Smith v Scott, which was to do with prisoner voting, which reconfirmed that the decision in the Hirst v United Kingdom (No 2) case should be implemented. That was not done until this year—there was a 13-year delay on the back of a declaration of incompatibility. The bill goes some way towards making sure that that will not happen for children’s rights.

The question on courts and tribunals—[Inaudible.]—feels like more of an implementation issue about whether we adapt what we have or create something new. That is a big piece of work on which I am not particularly qualified to offer any more insight.

Professor Tisdall

The issue that has been raised is an important area. One of the big benefits of a children’s rights approach is in accountability and in the importance of having just, effective and appropriate redress and remedy. From our evidence from children and young people, we know that, largely, we are not very accessible. There are good examples that we can learn from. We know that the additional support needs tribunal is working extremely hard in that regard, and I think there is a lot of learning to be had from that.

However, I agree with Andy Sirel about the need to take a bit of a step back. On 27 November, we will be able to give our conclusions to the committee. We are having a seminar with the Children and Young People’s Commissioner Scotland on the Children (Scotland) Act 2020, bringing in the children’s views, to address that very issue about what redress means in that context. As has been discussed, we need to think about the package. At the very least, the baseline is that cultural change in understanding.

An increasing amount of advocacy is available for children, and we know that the Scottish Government wants to join it up. The bill is an opportunity to do so. The issue of having a child-friendly complaints system has been mentioned, but that is quite radical. In our research for the Children’s Commissioner for England, even the idea of a child understanding and wanting to make a complaint was actually quite a big hurdle—[Inaudible.] Can we think of complaints as positive things rather than as something that a public authority, for example, might not want to hear?

Access to justice is also a big issue. You will know that we are critical of the legal aid changes, which have sometimes prevented children from accessing legal aid. It should be a requirement to address that whole area as part of the children’s rights theme—through the bill, we suggest—to make sure that that cornerstone of the children’s rights approach is really, and regularly, considered.

The Convener

Thank you. I know that Alexander Stewart has some questions about that, but I will first bring in Andy Sirel, who has indicated that he wishes to make a point.

Andy Sirel

I have a brief point to make off the back of what Kay said about legal aid, which is mainly for the record. I saw, from the written evidence that was submitted by the Scottish Legal Aid Board and other parties, that legal aid is under review by ministers, and I want to flag that the committee should consider whether there should be something in the bill that relates to free access to legal advice or other legal instruments, such as there is in the South African directive.

We have a problem in Scotland around eligibility criteria as they apply to children. First, there is the duty of—[Inaudible.]—which takes into account parental or other guardian resources, and, secondly, there are the limits themselves. I work with care-experienced people, and many of them receive the care-experienced bursary, but a part-time job makes them ineligible for legal aid. For most of the young people I work with who are in their late teens or early 20s, if they work at Nando’s or Marks and Spencer and they receive the care-experienced bursary, they do not qualify for legal aid and we need to work for them pro bono. That is a serious access—[Inaudible.]

Fulton MacGregor

I have a brief follow-up question on an issue relating to part 2 of the bill that witnesses have already touched on. Do you think that it goes far enough to ensure that judicial remedies that can be provided by courts and tribunals will be effective in practice for children and young people?

Convener, I am aware that some colleagues require to leave to get into Edinburgh, so I am quite happy, with your permission, to address my question to Morag Driscoll and Janys Scott QC, although anybody else can come in.

The Convener

If other panel members wish to add anything, they can request to do so in the chat box.

Morag Driscoll

That is not a simple question. It is a big improvement. The points that were made earlier about who the duties fall on and that it should not only be Scottish ministers but the Parliament are important. I go back to the question about who can raise the action, which is apart from the question of access to justice. It goes back to that question, but I do not have anything to add to what the practitioners said earlier. It is another issue to go to Janys Scott on.

Janys Scott

Part 2 of the bill allows all the tools in our current toolbox to be used on behalf of children. Unless you are going to go further and invent more tools, it is as effective as you can make it in the context of the current bill. I take Andy Sirel’s point about legal aid, which certainly needs to be looked at to make sure that the bill will be effective for children. However, so far, so good.

Alex Cole-Hamilton

I will ask similar questions to those that I asked the first panel. I will start with the recognition that the UNCRC is a baseline—it is not best practice; it is what the international community regards as the bare minimum. Can we, in all conscience, incorporate the UNCRC while, for example, the age of criminal responsibility is still below the international baseline that the committee has set, albeit through a general comment? Is there a moral imperative for us to scan across all the articles to make sure that we are at the threshold, if not above it, before we can legitimately claim to have incorporated that important convention?

Morag Driscoll

Of course, the Law Society does not comment on moral attitudes. However, we did argue at the time that the age of criminal responsibility should have been raised to 14. Personally, I would like to see Scotland take a lead on these things, but it is much more a matter for Parliament to decide and the Law Society to recommend on. One needs to be careful.

Janys Scott

The UNCRC contains a huge and aspirational set of articles, and—as was mentioned earlier—the convention is a living instrument. Therefore, the way that it is read and interpreted will develop over time. It is important that we do not see this as a static matter but that we look at it as one that requires constant review. Huge areas of law would have to be considered, not only the age of criminal responsibility. I could run off a few examples of litigation from the past month.

If children are deprived of their liberty because they stay in children’s homes that are not approved for that purpose, does that comply with article 3(3)? Does our childhood mental health service comply with what is required by articles 24 and 27, or do we have a big issue there? The Children and Young People’s Commissioner Scotland’s “No Safe Place” report discusses whether we are using restraint and seclusion inappropriately on children with additional support needs in Scottish schools, which relates to article 37. Are educational rights a right? What about adequate standards of living? Do we consider top-up benefits?

The area is absolutely huge, so a challenge has been set. Okay, the UNCRC contains the minimal standards, but it has to be appreciated that the issue is quite large. That is why the faculty said, “Hang on a minute—have you actually costed this out?” I do not want to discourage you—children’s rights are important—but, if the bill is to have teeth, there is a lot of work to be done and quite a lot of money to be spent. Sorry.

Andy Sirel

My answer will be relatively short. The bill allows us to pull ourselves up by our bootstraps. If aspects of children’s law in Scotland do not meet the minimum standards, the bill will make that happen.

How that happens is up to us. It is going to happen through the effective—[Inaudible.]—scheme and the impact assessments and the reporting duties. Time and space—but not too much time—and money, as Janys Scott said, will be required to bring us into compliance. Alternatively, it will happen through litigation when there are serious faults and we are below that floor. It will happen more quickly through the latter than through the former.

I do not want to put the fear into anybody. I do not think that there is a pack of opportunistic lawyers at the door who are baying for blood—that is not the case. As I said, as practitioners who work directly with children, we do not want to go directly to court. Rather than think about whether we should do this, because we might not yet meet all the requirements, we should see doing it as an opportunity to allow us to be compliant in the long run. Nevertheless, I agree with Janys Scott that it is a not insubstantial task.

I would encourage members to read COSLA’s written submission, as well as the submissions from other local authorities, because those are a good litmus test of how they view the task. Their view is that they are already doing this and that, if something is needed, it is a little bit more time. However, it is not an impossible task.

I am encouraged that there is political will and will on the ground. Nothing is impossible.

Professor Tisdall

I think that it is a moral imperative. We must incorporate the UNCRC, and the bill is an excellent start to that.

The committee might know that UNICEF commissioned research that looked at incorporation of the UNCRC in 12 countries. That work was done by our colleagues Laura Lundy and Ursula Kilkelly, and, as members might know, it found that incorporation did not substantially increase litigation. It was particularly helpful for changing culture and practice, and our discussion today has emphasised that that is what we want to do. Therefore, we have evidence to suggest that, if we invest in doing that, although litigation has to be a possibility, it is not necessarily tied to incorporation.

Alex Cole-Hamilton

Thank you. The reflection that I offer in response to Andy Sirel is that the articles of the convention are silent on the minimum age of criminal responsibility. We set it through the general comments and, under the terms of our incorporation, those general comments would not be justiciable. Therefore, I take issue with the suggestion that it will automatically happen as a result of litigation; we need to push that ourselves.

The convention is a living document that is shaped by the interpretation of optional protocols, general comments and concluding observations of UN rapporteurs. Are the witnesses content that the bill has a sufficient feedback loop built in, so that the Government is compelled to respond and adapt, based on the general comments, concluding observations and optional protocols?

The Convener

The witnesses have reflected on that somewhat in response to Mary Fee’s questioning, but if they wish to add anything, we would be happy to hear that.

Alex Cole-Hamilton

That is all right; I will move on to my final question, which is on commencement. We have already touched on it lightly, with the previous panel of witnesses. An act is meaningful only when it comes into being and, at this time, there is no date for that, nor is there a date for commencement of the Age of Criminal Responsibility (Scotland) Act 2019. Can you tell us why it should be delayed? How quickly could we bring it in? Should we specify a date in the bill?

Morag Driscoll

A big piece of work will have to be done and there will be a lot of work in the background. Local authorities and other public bodies will have a lot of work to do and will be waiting for guidance, which will have to emanate from—[Inaudible.] I cannot see the act coming into force by Christmas but, if a date were to be included, it would have to be realistic. I agree with comments that were made earlier about a date being useful as long as it is realistic, but I also agree with the comments about bringing in the scheme. When will the first reports be due? When will we hear about that?

It is also important when doing something new with children to review it in order to see whether it is working or needs to be adapted. I would like the bill to say that the first review of the new changes must be done within a certain period. In doing something new with kids, especially in relation to a living document such as the UNCRC, you need to ask whether we are still complying, whether there have been changes and what we need to do now. I would build that into the bill. There should also be a realistic date for commencement; I would not like to see another nine years go by.

Janys Scott

Imagine sitting down with a child and telling them that they have rights under the UNCRC, but that we are sorry, because although it would be lovely to ask the court to force the public authority to do what the UNCRC says, incorporation has not happened yet and we do not know when it will happen. If we raise the expectations of children and young people with the bill, we owe it to them to say when incorporation will happen. I accept the point that there has to be a realistic timetable so that there can be preparation, but it would be a great disappointment not to set that timetable through the act being brought into force as soon as we can legally do so.

Andy Sirel

I agree with Morag Driscoll and Janys Scott. In the previous evidence session, Professor Norrie said that a date focuses minds. I am thankful that it is not my job to provide that date. I appreciate that there are considerations to balance, but a date certainly focuses minds. I do not want to be the person who delivers the bad news to a young client about the act coming in but not being enforced until they are 21 years old. That would be pretty unpleasant.

The final point that I will make about the date is that leaving it up to ministerial discretion could punt the issue into the long grass. I always worry about future proofing. We live in a very strange world. If we were to transport ourselves six years into the future and Scotland happened to be governed by a rights-sceptical party or group of persons who were not interested in the matter at all, and if the date had been left to ministerial discretion, the provisions might never come into force. We cannot be complacent. After consultation of your colleagues in local government, I would like the bill to include a realistic date. We do not want to rush things and come out with bad procedures; we want to get this right. However, we also want incorporation to be prompt.

Professor Tisdall

I agree. There needs to be a commencement date in the bill.

To pick up on Morag Driscoll’s point, I say that I think that reviewing and monitoring implementation is key. The children’s rights scheme is perhaps the key place to do that. We have lots of statistics, but they are not answering our children’s rights questions, so there is an urgent need to think systematically about how we do that. That would be a big step forward.

Alexander Stewart

I will stick to similar questions that I asked the witnesses in the previous session, about the children’s rights scheme and children’s rights and wellbeing impact assessments. The witnesses in this session have already touched on those issues. The previous witnesses identified that there are gaps, that there are opportunities to develop the scheme and the assessments, and that the language in the bill could be stronger. It would be good to know whether you believe that to be the case. Should anything be added or changed in the content of the scheme?

As we have already discussed today, the Scottish ministers would have discretion in relation to the children’s rights and wellbeing impact assessments. Again, it would be good to hear your views on whether the Scottish ministers should have discretion in strategic decisions. How would that impact on the processes that have been identified throughout our evidence?

The Convener

Kay Tisdall mentioned the children’s rights scheme in her previous answer, so we will go to her first.

Professor Tisdall

That is a change, but that is fine.

I believe that the committee knows that a scheme in Wales has proved to be very successful overall; we can learn from that. Such schemes can be very effective, so paying attention to the scheme in Wales makes a great deal of sense. I have slipped in those comments in case we ran out of time.

Overall, the scheme should be strengthened. Section 11(3) should include things that are required to be in the scheme—for example, a phrase about promoting understanding. I am not sure why the wording of the Children and Young People (Scotland) Act 2014, which will be repealed, has not been included, because it has been argued that that wording is stronger and is about understanding. That is perhaps a technical but important point. I have made the point that a children’s redress scheme and children’s rights indicators should also be included.

I have read the evidence from Together, which the committee will hear from, I believe. There is a strategic approach, and the bill uses the phrase “as they consider appropriate”, so there are at least two discretionary elements. I agree with Together’s suggestion that the phrase “as they consider appropriate” could be removed.

We are supportive of public authorities having to undertake children’s rights and wellbeing impact assessments; in fact, we are working with some public authorities on that. That is a positive way to take forward children’s rights.

Morag Driscoll

What Kay Tisdall just said is spot on. I would like the bill to be very clear. If it is to be essential and important, the language in it must be careful and clear, and there should be more obligations. The discretion element could water it down. I have nothing further to add.

The Convener

Janys—do you have anything to add on that topic?

Janys Scott

That is not an area in which the Faculty of Advocates operates, so I do not have anything useful to add.

I was interested to hear Professor Tisdall say that the Welsh scheme has been successful. It must have been a disappointment to see the case of a Welsh child being debated in the Supreme Court a couple of weeks ago. Their rights were being overlooked and the case was being defended by the Welsh Government. Such schemes have to be made effective. That was a case in which a child had been detained in unauthorised accommodation and their liberty had been taken away.

The Convener

Does Andy Sirel have any comments on the children’s rights scheme or the children’s rights and wellbeing impact assessment?

Andy Sirel

I have two brief comments, which have been made before. I recommend that where section 11(3) says that the scheme “may”, it should say “must”. I could be convinced otherwise, but I do not entirely grasp why it should be discretionary to

“ensure children are able to participate in the making of decisions that affect them”,

because that is a relatively clear-cut intention of the bill.

I have a comment about section 14(3), which, similarly, is related to discretion. As a lawyer, reading technical parts of bills that say the “Scottish Ministers must”, I think, “Oh!”. However, the end of section 14(3) says “as they consider appropriate”, which negates the “must”. That is a drafting point to do with whether the provision will be discretionary, which is a decision for the committee to make.

The children’s rights scheme and CRIAs are not my area of expertise, so I cannot offer anything beyond what Kay Tisdall or other witnesses have to say. However, the future-proofing aspect is important to me. If the bill were to say that future Governments and Parliaments must do things that are in the bill, I would feel a bit safer. That is why I would turn away from the discretionary elements.

The Convener

In terms of expectation setting, we cannot bind the future too tightly, but I take on board what you are saying.

Alexander—do you have any further questions or are you content?

Alexander Stewart

I am content with the answers that I have received.

The Convener

I have a final question about the court’s powers to determine compatibility, which Andy Sirel touched on in one of his answers. Part 4 of the bill sets out significant powers for courts to make declarators—a difficult word for me to say—in respect of incompatible legislation. Do you have any further comments on part 4, Andy? The committee would be particularly interested to hear whether you accept the view of the Scottish Government that strike-down powers for future primary legislation are not within the legislative competence of the Scottish Parliament.

Andy Sirel

My view on strike down is that it is a strong remedy. I like it, and I like the safeguards that are built into the bill with respect to passing notification to the Lord Advocate and the children’s commissioner. That allows us to think carefully about a robust remedy and allows it to be used appropriately.

The Scottish Government’s view that strike-down powers could not be applied to future legislation speaks to the issue of devolved versus reserved powers—that such provision is ultra vires, under section 29 of the Scotland Act 1998. On balance, that is right, because it is a restriction with regard to competence.

I do not know the answer to the question—I would need to apply my mind to it in more detail. It is interesting to ask whether the same problem would arise if we were to include the Scottish Parliament under section 7 of the bill. That might be tantamount to something similar—but perhaps not. When I heard that being raised in the earlier evidence session, I wondered whether that would do the same thing. It might be something for further exploration.

With regard to declarations of incompatibility, I have said already—[Inaudible.]—and I like the additional—[Inaudible.]—in place over and above the Human Rights Act 1998. I would like there to be a requirement on ministers. What they do is currently at their discretion, so I would like something more explicit in the bill. That is all I have to say. Is there a part of your question that I have not answered?

The Convener

No, you have covered it fully. Do other witnesses wish to give their opinions on that? I will bring in Janys Scott. Morag Driscoll and Kay Tisdall shook their heads, but you did not.

Janys Scott

This comes back to the point that I made at the beginning. As a litigator, I would prefer by far to go for a read-down than for declarators of incompatibility, because a read-down gives the person who I am representing an immediate remedy in respect of compliant reading of the legislation, which has been very widely interpreted by the House of Lords and the Supreme Court. Therefore, section 19 is a great part of the bill. Declarators of incompatibility do not give a remedy; they just say that the law is wrong, which does not help the person who is being represented.

The compatibility point that the convener raised is a big constitutional issue. It would not be appropriate for me to express a view on that in giving evidence to a committee. It is a complex issue. I like the suggestion that ministers would be under an obligation to—[Inaudible.]

The Convener

I am sorry. We lost some of your answer. I wonder whether you were about to talk about the duty to report. Your sound froze after you said, “I like—”. Will you repeat what you said, please?

Janys Scott

I liked Andy Sirel’s point that something has to be done and that the matter cannot just be left hanging.

My final point is that there are some big constitutional issues in respect of how domestic legislation interplays with international instruments, and in the context of its being devolved legislation. Therefore, we will have some interesting work to do as and when the bill becomes law.

The Convener

Thank you. That brings our evidence session to a conclusion. I thank Morag Driscoll, Janys Scott, Andy Sirel and Professor Kay Tisdall for their evidence, which has been really helpful and valuable. If there is anything that you did not have the opportunity to say or submit to us, please feel free to provide follow-up information. We might be back in touch through correspondence.

That concludes the public part of the meeting. The next meeting of the committee will be on Thursday 19 November, when we will continue to take evidence on the UNCRC. As we previously agreed, we now move into private session.

Meeting continued in private until 11:37.

The Deputy Presiding Officer (Lewis Macdonald)

The next item of business is a debate on motion S5M-23883, in the name of John Swinney, on the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill, at stage 1.

The Deputy First Minister and Cabinet Secretary for Education and Skills (John Swinney)

At a time when our country is wrestling with the difficulties and challenges resulting from Covid—the disruption to our lives and the burden and sense of loss being carried by every citizen of Scotland—this debate marks a moment of enormous historical significance and, if I may say so in the current context, of joy for our country. It is a moment of commitment to the future of every one of our precious children in Scotland. It is a moment in which our Parliament takes the first step in legislating for the assurance of the highest level of rights for every child in Scotland.

Scotland is set to be the first nation in the United Kingdom to fully and directly incorporate the United Nations Convention on the Rights of the Child into our domestic law. In doing so, Scotland will act as a leader in human rights internationally, and across the nations of the United Kingdom.

Alex Cole-Hamilton (Edinburgh Western) (LD)

I congratulate the cabinet secretary on an excellent bill. Does he agree that in order to be world leaders in children’s rights, we need to have an age of criminal responsibility that is above the internationally prescribed minimum? Can he confirm to Parliament when the Age of Criminal Responsibility (Scotland) Act 2019, passed by the Scottish Parliament to lift the age of criminal responsibility from eight to 12, will be commenced?

John Swinney

The issues in relation to the age of criminal responsibility have been well rehearsed in Parliament and will continue to be debated as a consequence of the passage into law of the bill that we are considering this afternoon.

The bill incorporates into our domestic law the significant elements and issues of the UN convention that are within the competence of the Scottish Parliament, enabling Scotland to live up to and build on the important journey that we have started to ensure that we have the highest level of rights in place in our country. That moment should be marked and celebrated by Parliament today. It helps that the Equalities and Human Rights Committee has unanimously recommended to the Parliament that the general principles of the bill be agreed to.

At this important stage in the bill’s passage, I want to take time to congratulate those who have advocated for such a bill for many years. It is with their insight and passion that Scotland is now ready to take this momentous step on its journey towards fully realising children’s rights.

I am grateful to the children’s rights organisations and the many children and young people who have been champions of the need for incorporation of the UNCRC since its ratification in 1991. I congratulate those champions on getting us to this important part of our rights journey.

I also extend my sincere gratitude to colleagues in public authorities. Despite the extremely challenging circumstances of the Covid-19 pandemic, they have proactively engaged with the Government and have shown their support for the bill’s principles. I will continue to give careful consideration to the support that public authorities need in order to fully realise the ambition in the bill. My officials are working closely with a range of stakeholders to ensure that accessible guidance, training and other materials are put in place as part of the implementation plan, in order to support public authorities, practitioners, children and families. The Government is committed to maintaining that collaborative approach through the passage of the bill, its commencement and its implementation.

I want to celebrate the work of the Equalities and Human Rights Committee and how it engaged with, and listened to the views of, children and young people during its stage 1 evidence taking. More than 50 written responses were received from children and young people. In addition, the committee organised seven events to engage with children and young people who would not ordinarily provide their views directly to Parliament.

The bill’s importance to the real-life experience of children and young people can be felt in this quote. One child was reported by the committee to have said:

“I think that if the Bill becomes a law, it will make so many vulnerable and poor children and families feel much more protected”.

That is the strongest commendation from children in our society.

The committee’s engagement makes clear the excitement that children and young people feel about realising their rights and the rights of others. Their engagement with the parliamentary process also demonstrates how important it is that children and young people are fully recognised as people in their own right, and that they have a voice to claim their rights.

I express my gratitude to the committee for its commitment to supporting children as rights holders and as active participants in the decisions that affect them. The committee’s work is inspiring, and I hope that it acts as a great source of encouragement for other committees and decision makers and shows what can be achieved if we listen carefully to our children and young people.

On 18 January, the Scottish Government published its response to the recommendations in the committee’s stage 1 report. I welcome the report and its recommendations. As set out in the Government’s response, I intend to lodge amendments that will deliver on a large number of the committee’s recommendations.

In line with my strategic commitment to a maximalist approach to incorporation, within the limits of the Scottish Parliament’s competence, the bill intends to ensure that compatibility with the UNCRC requirements is required in every instance in which public functions are undertaken. The Government is confident that the bill as drafted would not enable a public authority to contract out its obligations under the bill.

However, I have listened carefully to the case for making it clear that those undertaking functions pursuant to contracts or other arrangements with public authorities should also be subject to the requirement not to act incompatibly. I am pleased to confirm that the Government will lodge an appropriate amendment to strengthen the protection that the bill provides in that regard. Children and young people deserve to have their rights prioritised and upheld by all those undertaking functions, including those who are paid to undertake functions on behalf of public authorities.

Guidance to support public authorities and those undertaking functions of a public nature to fulfil their duties under the bill will be provided as part of the implementation programme. That guidance will be developed in partnership with the bodies that will be affected.

The bill as drafted already recognises the importance of non-binding sources of interpretation that courts may take into account when they are determining a case. Such sources include the preamble to the convention, the first and second optional protocols and articles that have not been included in the bill because they fall outwith the powers of the Scottish Parliament. In line with the committee’s recommendation, the Government will lodge an amendment that will expand that list to include sources that emanate from the United Nations Committee on the Rights of the Child. Although it is the contents of the UNCRC requirements that are authoritative, the amendment will recognise the important role that the UN Committee on the Rights of the Child plays in supporting the effective implementation of the convention across the world.

I highlight that the Government will also lodge an amendment to strengthen the children’s rights scheme obligation on the Scottish ministers, as recommended by the committee. Section 11 of the bill requires that the Scottish ministers publish a children’s rights scheme, setting out the arrangements that ministers have made, or propose to make, to fulfil the duty not to act incompatibly with children’s rights.

I am very happy to make clear that ministers will always be required to include and report on the topics listed in the bill.

The scheme will also be strengthened by requiring updates on arrangements to promote a child-friendly complaints mechanism and ensure effective access to justice for children and young people. Those improvements will ensure that Scottish ministers fulfil their role as leaders in children’s rights.

The committee asked for the bill to be commenced six months after royal assent. I continue to give serious consideration to balancing the current, extraordinary demands on public bodies with the ambition to deliver legal protection for children’s rights as soon as possible.

The impact of the Covid-19 pandemic has been felt acutely by children and young people. It has disrupted their lives in previously unimaginable ways. Respect for children’s rights in tackling the adverse effects of Covid-19 is critical.

The impact of the pandemic and the United Kingdom’s withdrawal from the European Union will continue to place additional burdens on children and young people for years to come. The bill is essential to our recovery and to getting the fairer and more equal society that the Scottish Government wants for Scotland’s future. As such, I am keen to avoid allowing an extended period of time to elapse before the commencement of the bill.

I acknowledge that the bill provides an opportunity to protect the rights of children and young people who have been significantly impacted by the current crisis, and I am also aware that there is support from a range of stakeholders for early commencement.

I want to be clear that it is my expectation that readiness for commencement of the bill should be a priority for all public authorities. I would expect those public bodies already to deliver their services to children and families in Scotland in a way that respects children’s rights, and I will consider further the issue about a commencement date as we reflect on all the important issues that I have put on the record.

I believe that this bill is an important step in supporting children and young people in fully realising their potential. There is a broad consensus that the incorporation of the United Nations Convention on the Rights of the Child into domestic law will advance children’s rights across Scotland. It is time for Scotland to enshrine children’s rights in Scots law and help to make Scotland the best place in the world for our children to grow up in.

The bill paves the way to ensuring the rights of every single one of our precious children in Scotland.

I move,

That the Parliament agrees to the general principles of the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill.

The Deputy Presiding Officer

I call Ruth Maguire to speak on behalf of the Equalities and Human Rights Committee.

Ruth Maguire (Cunninghame South) (SNP)

I am pleased to speak on behalf of the Equalities and Human Rights Committee in the debate. It has been 30 years since the UK ratified the UN Convention on the Rights of the Child, which, under international law, sets out the civil, political, economic, social and cultural rights that all children are entitled to. I agree with the Deputy First Minister that progressing this legislation is a moment of joy in what are very difficult times for everyone.

Incorporating the most widely ratified human rights treaty in the world into Scots law is a landmark moment for Scotland. The new bill legally obliges public authorities—including the Scottish ministers—to respect children and young people’s rights, and it places them under a duty not to act incompatibly with the UN convention. The bill will allow children and their representatives to take public bodies to court for breaches of their rights. The bill was the focus of the committee’s work during the latter part of last year.

We welcome the Scottish Government’s maximalist approach, which seeks to go to the very boundary of legislative competence to ensure that children and young people’s rights are respected and protected and can be fulfilled to their fullest extent in Scotland.

In keeping with that maximalist approach, the committee considers it vital that children have their rights protected, respected and fulfilled as a matter of urgency. That is why we have urged the Scottish Government to amend the commencement provision to ensure that the legislation comes into effect six months after the bill receives royal assent. I appreciate the Deputy First Minister’s assurance that serious consideration is being given to that important matter.

To inform its scrutiny of the bill, the committee issued a call for evidence that ran from 7 September to 16 October 2020. We received 153 written submissions about the bill, largely from organisations in the public and third sectors.

Children and young people are at the heart of the bill, which is why the committee also held a dedicated call for their views. The associated facilitators pack—developed with the assistance of Together Scotland, the Children’s Parliament and Children in Scotland—was crucial to the success of that call. It is evidence of the effort and skill of those groups that the committee received more than 50 responses from children and young people, which came from individuals, primary schools, high schools, modern apprentices and children’s organisations. We thank everyone for sharing their knowledge and time. Creativity and innovation did not stop there. Responses included reflective writing, drawings and stop-motion videos. I invite members to look at the ideas that we were sent.

We know that children are not a homogeneous group. With the assistance of many voluntary groups, such as the Scottish Children and Young People’s Centre for Justice and Aberlour guardianship, we listened and spoke to children under 12 years old, young people between the ages of 12 and 18 and young carers, refugees and asylum seekers. We spoke to minority ethnic young people; children and young people with additional support needs; care-experienced children and young people; lesbian, gay, bisexual, transgender and intersex young people; and those with experience of the youth justice system. Through those varied activities, we came to a real understanding of what they hoped that the bill would achieve for them.

At the Children’s Parliament session, young participants said that adults sometimes do the wrong thing because they do not understand children’s rights. One example given was:

“If a child doesn’t know how to tie their shoelaces, then people teach them. If a child doesn’t know how to behave, then people punish them. That makes no sense.”

Young refugees told us about the importance of article 22 of the UNCRC, which says that they have the same rights as children born in that country. They told us that that meant they could dream of a future and could receive an education and access health services like people living in Scotland. They said that they would feel isolated if they did not have those rights.

Our child-friendly version of the stage 1 report, published simultaneously with the requisite report, ensured that children and young people have a report that speaks to them about their interests. It shows how their views were listened to and taken account of in the committee’s considerations and explains what happens next to the bill. If any of the children and young people who helped us are watching, I place on record and say directly to them that we thank them for their valuable insights and their help.

Almost everyone who shared their views with us through submissions, oral evidence or participation, whether they were academics or children, had one thing in common: overwhelming support for the bill. The bill has the potential to put children’s rights at the very centre of public authority decision making.

However, we believe, as the evidence to the committee has shown, that there are areas where the bill can be improved.

For example, we called for the definition of “public authorities” to be widened to ensure that organisations such as private schools, housing providers, residential care settings and childcare providers are not excluded from the legal obligations in the UNCRC. Experience with the Human Rights Act 1998 has shown that courts have defined the term “public authorities” too narrowly, exempting private or voluntary bodies when they are carrying out public functions. The committee believes that that must not be the case under the bill, so we recommended that the Scottish Government consults the main stakeholders to investigate how the definition of a so-called “hybrid public authority” could be tightened to avoid similar issues arising. We welcome the Scottish Government’s commitment to lodge an amendment to strengthen protection in that area.

Under the bill, as well as the children’s commissioner having the ability to take cases, children and representatives acting on their behalf will be able to challenge public authorities in court for infringing their rights. The bill would allow the courts to strike down legislation that is incompatible with any UNCRC requirements.

However, submissions to the committee raised concerns about the accessibility of the existing courts and tribunals service to children. Our report called on Scotland’s top judge to reflect on that evidence and to provide an update on the progress being made towards developing a child-friendly court system in preparation for the new legislation. We look forward to receiving a progress update that will inform the amending stages of the bill.

We made further recommendations aimed at improving access to justice for children and young people; for example, in relation to ensuring that judicial remedies for infringements of children’s rights are effective in practice. Rosemary Agnew, the Scottish Public Services Ombudsman, considered it important that remedies should drive organisational change and, vitally, should consider what children might want as a remedy. We are pleased that the Scottish Government has agreed to amend the bill to require courts and tribunals to ask for the child’s views on what would constitute an “effective remedy”. The committee, however, asks the Scottish Government to reconsider its position on altering the definition of a remedy so that it is “just, effective and appropriate”.

One of the bill’s key operational mechanisms is the requirement on Scottish ministers to make a children’s rights scheme to set out how they will comply with the duties in the UN convention. Many stakeholders argued that the scheme could be strengthened to include measures to support children with protected characteristics and those in vulnerable groups. Juliet Harris from Together Scotland referred us to our consultation events, as they showed that particular children struggle to access their rights, such as children whose first language is not English, those who might face food poverty or those who cannot go to school.

Oonagh Brown from the Scottish Commission for Learning Disability called on the scheme to refer to the UN Convention on the Rights of Persons with Disabilities, so that young people with learning disabilities, alongside those with other protected characteristics, see themselves in the bill. Otherwise, the bill might not be seen as being helpful to them in realising their human rights.

Further inclusions were called for: access to advocacy support, legal aid, human rights education and a child-friendly complaints mechanism. Each one is fundamental to ensuring that children’s rights are made real in practice.

We welcome the Scottish Government’s intention to strengthen the scheme by requiring ministers to include arrangements for child-friendly complaints mechanisms and ensuring effective access to justice for children and young people. It would be helpful if the Deputy First Minister could clarify whether those amendments will address concerns around protected characteristics and vulnerable groups.

I will finish with a quote from a young engagement participant from the Carers Trust Scotland, who said:

“The UNCRC needs to be ‘out there’ and be known. Unless it is known about it’s just ‘there’ We need a public conversation about UNCRC and young people in Scotland.”

That highlights the critical importance that implementation plays in the bill’s success. We must not just have the bill “there” or think that now that the UNCRC is being incorporated, that is all that we need to do. We need to make sure that the bill works to advance the culture change that we all want to see for our children and young people now and for future generations.

The Equalities and Human Rights Committee supports the general principles of the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill.

Alexander Stewart (Mid Scotland and Fife) (Con)

I am delighted to open on behalf of the Scottish Conservatives in this important stage 1 debate. I extend my thanks to the committee clerks and all those who provided extensive evidence on a complex subject.

We are nearing the end of a long journey, during which this matter has been debated at various stages in different parliamentary sessions at Holyrood. For the Scottish Conservatives, the journey has been a long one. Back in 2013, the then Education and Culture Committee was asked to provide evidence on the Children and Young People (Scotland) Bill. The Scottish Conservatives agreed, like other parties across the chamber, that we had an obligation to deliver better legislation and enhance the protection of young people. Members will know, however, that we did not agree to some of the final key provisions in that bill.

With regard to the initial discussions during evidence taking for stage 1 of that bill, when the incorporation of the UNCRC into Scots law was mooted, our concerns were largely due to some issues about how the provision would be implemented. For example, we raised concerns about the fact that on certain points of law in relation to the possibility of the incorporation of the UNCRC into Scots law, there were differences of opinion between the Scottish Government advice and the legal profession, and between the Scottish Government and the then Scotland’s Commissioner for Children and Young People.

Members present at that time know that the Government, in citing its own concerns, quoted Professor Kenneth Norrie, who said:

“to incorporate the convention into the domestic legal system of Scotland would be bad policy, bad practice and bad law.”—[Official Report, Education and Culture Committee, 3 September 2013; c 2682.]

We have moved a long way during the past seven years.

Although the Equalities and Human Rights Committee’s stage 1 report is unanimous in its recommendations as to why the principles in the bill are the right ones, I want to address some practical issues that were identified in it.

What is needed to be put in place to ensure that we have good law? I remind members that legislation, if it is to be defined as good law, depends on whether it has clarity of purpose, whether it can be understood in simple language, whether it has a strong evidence base, whether it is workable and whether it is accepted by the public at large.

With those criteria in mind, I think that that last aspect is a given, namely because the public, and the clear majority of key stakeholders, want to see the bill passed, as they recognise that the enhancement of the protection of young people is vital.

However, there are some hurdles that require to be overcome before the bill becomes good law. That will require amendments at stages 2 and 3. In its briefing note, Families Outside spoke about the need for amendments in order to strengthen many areas, including access to free legal advice; improving data collection and supporting monitoring and evaluation; training for ministers, civil servants and politicians to ensure a better understanding; and promoting best practice for children’s rights. All those suggestions have merit, and amendments on them may well be lodged at stage 2.

The Scottish Prison Service and the Scottish Courts and Tribunals Service may well need to be included in the public bodies listed in section 16 of the bill, given their role in helping to secure the rights of children.

As a member of the Equalities and Human Rights Committee, I am most grateful for the support that we received from individuals and groups that would benefit from the bill when we were gathering evidence. Extensive work was done to ensure that we captured the views of many organisations, groups and individuals. The evidence from the children and young people’s groups, human rights experts, public authorities and members of the legal profession showed considerable support for the changes to legislation and strengthening of children’s rights.

As a committee, we believe that, on balance, the approach in the bill is appropriate. However, some people want to raise issues, such as the potential risk of incorporation being seen as achieving the minimum of UNCRC standards.

Part 3 of the bill covers the children’s rights scheme. Several of those who responded to the calls for evidence, and some of the people who gave oral evidence, spoke about the safeguards and the language in section 11(3), arguing that they needed to be strengthened. I heard the cabinet secretary say in his opening speech that that section needs to be strengthened, which is to be welcomed.

The bill states that the scheme “may” introduce certain arrangements around children’s rights. Many stakeholders have called for that to be a requirement.

The scheme also mentions protected characteristics and vulnerable groups. The lack of access to advocacy, human rights education and a child-friendly complaints mechanism should be considered, as there are gaps in supporting children in the provisions.

There was strong support for section 40, which is on commencement. However, many witnesses and respondents to the call for evidence talked about the lack of a commencement date in the bill and the need for that date to be clear. We have heard today that the cabinet secretary is looking seriously at when commencement will take place.

It must be acknowledged that children and young people have been significantly impacted during the pandemic. Children must have their rights respected and fulfilled as a matter of urgency. Therefore, it is vital to ensure that a generation of children and young children do not suffer long-term impacts from the current crisis that they face.

The bill must have some content on raising awareness, and we must ensure that barriers to the good work that is being undertaken are removed. Indeed, much of that work has been achieved.

We in the Scottish Conservatives fully support the move to ensure protection for children and young people and to enhance their rights. There is no doubt, however, that the bill raises many questions, and we must all acknowledge that much progress will be required to achieve the bill’s aims, through the stage 2 and stage 3 amendments that may well come forward—not least in relation to how the eventual legislation will work alongside the United Kingdom Human Rights Act 1998. We must recognise the various technical challenges that incorporating the UNCRC into domestic law may bring, with the potential for conflict caused by clashes between rights set in the reserved law and those within the UNCRC itself.

The bill must not result in endless clashes of legislation and long-lasting legal battles. That is not what we want to achieve; what we want to achieve is support. We support the general principles of the bill, and we will lodge amendments at stages 2 and 3.

Mary Fee (West Scotland) (Lab)

It is a privilege to speak in this stage 1 debate on the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill and to open for Scottish Labour. The significance of the proposed legislation cannot and should not be underestimated. It will have a life-changing and lifelong positive impact on all our children.

As a member of the Equalities and Human Rights Committee, I thank my fellow committee members for the consensual and productive way in which we have all approached the bill. I also take this opportunity to thank our clerks for their hard work and dedication. Given the slightly more rushed timetable than we normally expect, I am grateful for their tireless efforts to get us to this stage.

I also thank the various organisations and individuals who presented written and oral evidence to the committee. We cannot do our jobs without their valuable input, so their time and expertise are very much appreciated.

The bill represents a pivotal piece of legislation, which I fully support in principle. Any bill that we pass that makes our access to human rights more robust is one that we should all whole-heartedly support, no matter the party of which we are a member.

For me, one of the biggest takeaways from the evidence sessions is that here in Scotland we are so fortunate to have so many organisations looking out for the best interests of our children. That is what the bill seeks to achieve. Through strengthening access to children’s rights, we are acting in their best interests.

Children in Scotland who are under the age of 16 cannot vote so, unlike the majority of the population, they have no choice in who represents them in Parliament. That is why it is our responsibility to be the best possible voice for our children. We must always seek to protect them, to improve their life chances and to ensure that they grow up in a safe and secure environment that will enable them to become citizens who live lives of fulfilment.

Every choice that we make in Parliament that directly impacts on a child’s life must be taken that much more seriously. Incorporation into Scots law of the United Nations Convention on the Rights of the Child will give our children more power over their own lives—it will give them their own voice more.

There is an old saying that children should be seen and not heard. I disagree with that. When children are heard, we get to understand a different point of view. Sometimes we learn from children, rather than the other way around. If a child is in pain and we ignore that pain, that pain will not just go away; it will become chronic. When we respect and empower our children we can support them better and end any potential cycle of pain for them.

I thank the Deputy First Minister for attending the committee and for his comments on our stage 1 report. However, I have a couple of issues that I would like to raise. I think that we need an amendment to ensure that the definition of “public authority” is robust. An updated definition would make the bill stronger and ensure that there are no problems with clarity down the line. That should be a priority at stage 2, so I welcome the comments that the Deputy First Minister has already made in that regard.

I appreciate that the Scottish Government intends that commencement of the bill will happen as soon as possible, but we all have different interpretations of what that means. I therefore express my support for a specific commencement timetable being published. The bill is desperately needed, so it is crucial that we are all on the same page. A timetable would allow us to do our job and to hold the Government to account.

I would also like to make it clear that it is very important to ensure that children are made aware of what the bill will mean for them. Children will not use the tools that are available to them if they do not know how to use them. We know that some children will have more difficulty than others in accessing the information. That key issue was highlighted in evidence sessions.

Ample resources to reach children in marginalised communities are needed. Children who are part of the Gypsy Traveller community, children who are refugees and children who are affected by imprisonment are just a few of the groups that need those resources. Those are all groups of children who might face more discrimination than others, so it is vital that they understand how they can use their rights in practice.

In closing, I note that we know that this has been an incredibly tough year for children—from having their education interrupted to spending but little time with family and friends, and with the uncertainty of what the future holds for them. By passing the bill, we can give them back some certainty. We can give them empowerment over their own lives and we can ensure that they can always access their rights in a court of law. When we not only protect but respect our children, we give them room to flourish.

I look forward to listening to the contributions of members from across the chamber. I give my commitment and the commitment of the Scottish Labour Party to work, as the bill makes its way through Parliament, with the Deputy First Minister, colleagues from across the chamber and organisations that work daily to support and protect Scotland’s children.

I look forward to decision time, when Parliament will agree to pass the bill at stage 1.

Ross Greer (West Scotland) (Green)

This is the first stage in a historic process for the Parliament and for Scotland’s young people. It is an important milestone in the wider efforts to codify international human rights treaties in our domestic law.

I would be remiss, as a former member of the Scottish Youth Parliament, if I did not start by congratulating the Scottish Youth Parliament for having brought us to this point. Without its work and that of the Children and Young People’s Commissioner Scotland and many others, this day would probably still be some way off.

The UN Convention on the Rights of the Child is a landmark document. It recognises that children in particular need strong rights protections that are tailored to their needs and which are, critically, accessible to them. What value are rights if children cannot exercise them?

The UNCRC incorporates civil and social rights together in one document, thereby recognising that those rights are interlinked and that children’s wellbeing cannot be assured without both sets of rights. After all, how useful are civil freedoms when one is starving or being denied healthcare? Too often, when poverty and inequality are widespread, civil rights are exercisable only by those in society who are already privileged—those whose economic needs are already being met.

Historically, many treaties have separated civil and social rights in different documents. An obvious example of that is the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Another example is the European convention on human rights and the European Social Charter. Separation of those rights has tended to undermine the legal protection of social rights in particular. Debates continue about the justiciability of social rights because they lack the history of court enforcement that characterises the development of civil and political rights.

The move towards neoliberalism and austerity economics, especially in the past decade, has seen social rights in the United Kingdom being attacked and undermined. Across the world, there are many constitutional orders that include social rights and afford them some level of protection. Unfortunately, that is not the case here, which is one reason why our integration into Scots law of the United Nations Convention on the Rights of the Child is so significant. We have seen the economic and social rights of children being violated, as successive UK Governments have, for example, cut services and social security provisions, and introduced expanded conditionality to the welfare system. When cuts have been criticised by UN rights experts, the UK’s Conservative Government has, disgracefully, attacked those experts.

By placing civil and social rights side by side, the UNCRC seeks to ensure a holistic approach that upholds the wellbeing of children. By transposing the convention directly into our domestic law, the bill will open the possibility of legal enforceability of the social rights that are contained in the convention. It is truly hard to overstate how significant that development could prove to be. The social rights of children and young people are critical, but we have seen how easily they can be cast aside without legal enforcement.

In addition to the prospect of legal enforcement, the bill will introduce other ways to protect and uphold rights. It will introduce a children’s rights scheme that is designed to ensure that children can participate in decision making that affects them, and it will place a duty on public authorities to act in a manner that is compatible with the convention. Those, too, are welcome steps forward. From my involvement in establishing East Dunbartonshire’s youth council, I can think of a number of examples in which such a duty having been placed on the local authority would likely have led to different outcomes.

There are certainly areas in which the Government could go further. The Scottish Youth Parliament has called for the children’s rights scheme to be made stronger—in particular, in relation to support for vulnerable children. The Scottish Youth Parliament has also called for the definition of “public authorities” to be expanded to include private companies that deliver public services. The Greens are happy to support those calls, and I welcome the cabinet secretary’s commitment in his opening speech to strengthening the latter provision.

One issue of enforcement about which there has been significant debate is whether Parliament can, in essence, bind its future self by striking down new legislation that is incompatible with the rights of children. That was considered by the Equalities and Human Rights Committee. I appreciate its work on that and the valuable inclusion of the issue in its report. Several academics have provided particularly useful supplementary evidence.

Constitutional protections that override primary legislation are a central feature of most constitutional orders, but it is a feature that is alien to a UK that is instead—to our detriment, I think—based wholly on the principle of parliamentary sovereignty, and whose constitution is muddled, to say the least. The Scottish Government has opted for a system of declaration of incompatibility for future legislation, believing that powers to strike down future legislation go beyond the competence of Parliament. However, that view has been challenged by academic experts.

I would like a more substantial response from the Government. In particular, I encourage the Government to take up Dr Boyle’s recommendation to seek views from a broad range of experts in constitutional law. With our being so close to dissolution, there is a danger that the rush to ensure that the bill is passed on time will result in significant issues being underexplored. That should not be the case with a bill that is of such constitutional significance.

Although all those matters are of immense importance, they are also unavoidably a bit dry and abstract. That happens with constitutional law, sometimes. I do not want to lose sight of the fact that the bill will, for a long time to come, have a transformative effect on the lives of children and young people in Scotland. It will be part of the legacy that every one of us in Parliament leaves, and it will benefit our most vulnerable young people especially. I was struck by the comments that the committee convener, Ruth Maguire, read out, which came from young refugees in Scotland.

It is for all those reasons that the Greens are, of course, happy to support the bill at stage 1.

Alex Cole-Hamilton (Edinburgh Western) (LD)

I thank the Equalities and Human Rights Committee’s clerks, and I thank the witnesses—in particular, the children and young people who gave us very full evidence during our consideration. I also pay tribute to two old colleagues of mine: Juliet Harris, who is the director of Together, the Scottish Alliance for Children’s Rights; and Bruce Adamson, who is the Children and Young People’s Commissioner Scotland. They are long-standing friends who have fought tooth and nail to get us to this point, so it is to their credit that we are here.

I also want to do something uncharacteristic, which is to congratulate the Government heartily on an excellent piece of proposed legislation. It has surpassed my expectations and those of many people in the sector, which is to the Government’s credit.

For me, today in many ways represents the penultimate step towards the realisation of a goal that I have been striving for all my adult life—as a youth worker, as an officer in a children’s charity and as chair of the Scottish Alliance for Children’s Rights. Indeed, more than seven years ago, I gave evidence to the Education and Culture Committee on behalf of the children’s voluntary sector. I was the opening witness in stage 1 consideration of the Children and Young People (Scotland) Bill in 2013, and I might well have been the first person to articulate the desire to incorporate the UNCRC into Scots law. I said:

“we want ... what you want, which is to create a Scotland that is the best place in the world to grow up in.”

By “you”, I meant the Government. I went on to say:

“For us, the most elegant roadmap to that, and the most elegant solution against the international standard, is to incorporate the United Nations Convention on the Rights of the Child into Scots law. Until we do something like that, or we build the provisions into the way in which we make policy, we will forever be behind those countries that have already incorporated the UNCRC”.—[Official Report, Education and Culture Committee, 10 September 2013; c 2715.]

Today, we are a step closer to that end, and I am heartily proud of that.

In the bill, we are recasting how we organise the conduct of human affairs in this country in a way that will put children and their interests at the heart of everything that we do. I congratulate the Government on that. However, the bill will serve the children whom it is designed to serve only if it is a living, breathing document that we come back to, refer to and remind ourselves of time and again.

We would do well to remind ourselves that the UNCRC is only the foundation on which rights are built—as the international community has determined, it represents the de minimis position—and is part of a much wider ecosystem that is updated every year. Therefore, I heartily agree with the Equalities and Human Rights Committee’s recommendation that courts and tribunals must pay heed to things such as optional protocols, general comments and concluding observations. So, too, must the Government in its application of the convention.

The cabinet secretary was kind enough to take my intervention about the age of criminal responsibility. I think that he rather suspected what was coming. In general comment 10 it is stated that the international belief of the United Nations Committee on the Rights of the Child is that no country can be observant of human rights if it has an age of criminal responsibility that is not higher than 14. Ours remains 12—in fact, we have not even achieved an age of criminal responsibility of 12, so I hope very much that we can improve on that.

The committee also believes that public authorities must, as they make policy, exhibit due regard for children’s rights, in addition to acting compatibly with the UNCRC. That means that public bodies and authorities must bake children’s rights into policy from inception, rather than just thinking about them in the latter stages and merely checking policy against a children’s rights impact assessment. Children’s rights should be at the heart and in the fabric of everything that we decide to do.

The bill will be as good only as the justice that is afforded to the children who seek it. At the moment, navigation of our justice system is, for the very young, an incredibly intimidating prospect. That is why the Equalities and Human Rights Committee has called on the Lord President, Lord Carloway, to look at reform of the criminal justice system to make courts child friendly or, at least, to make access to justice more child friendly. It has also asked the Government to consider the implications for legal aid, so that no child is prohibited from reaching out for justice on the ground of cost.

Improvement of the remedy does not stop at providing access to the courts; it involves hearing the views of children about what would make their journey better and what would right the wrong that they have experienced. Our hearing the voice of children should be at the heart of every remedy that we offer them.

On reporting, ministers must make the legislation a live document, so it is good that they have committed to coming back to Parliament to report on evidence of rights transgression in our communities and our public bodies. However, they should also say what action they intend to take on deficiencies that they identify.

Finally, it is important that ministers do not have an option in relation to child rights and wellbeing impact assessments: those should be done for every policy. It is easy to think that certain aspects of our legislation are not relevant to children, but children are stakeholders in our community. We are custodians of their future, so we should think about that for every piece of legislation that we deal with.

Finally finally, we have covered several times the issue of commencement, on which I intend to lodge an amendment at stage 2. A bill is only window dressing unless it becomes an act and is delivered on the ground. I am concerned that the Age of Criminal Responsibility (Scotland) Act 2019, which we passed two years ago, has still not commenced. Rights will be made real only once they are real on the ground. Therefore, I ask the cabinet secretary to meet me to consider my suggested amendment to commence the act six months after its receipt of royal assent.

This is a great day for Scotland. I will close with the words of Nelson Mandela, who said that

“there can be no keener revelation of a society’s soul than the way in which it treats our children.”

The Deputy Presiding Officer (Christine Grahame)

I was somewhat amused by your “Finally finally”, which a few members use.

Gillian Martin (Aberdeenshire East) (SNP)

I will talk about the outreach that the committee did on the bill. It is important to stress how valuable and comprehensive it was, and to commend the children and young people who took part. Their insights, sharing of first-hand experience, and sheer enthusiasm for the legislation were really quite something.

It is clear that the UN Convention on the Rights of the Child means an awful lot to the young people in Scotland. Over a month, we had eight planned sessions with children and young people, as well as our public committee meetings with stakeholders. We had sessions with children and young people of all ages, young people with disabilities, care-experienced children and young people, asylum-seeking children, and young people who have been the victims of trafficking. We heard from young people with experience of the justice system, and from children of different ethnicities, as well as our new young Scots who are coming to us from countries across the world.

I was particularly struck by the strength of feeling on the UNCRC and children’s rights from looked-after children and care-experienced young adults. They are young people who have felt in the past that their rights were not being communicated to them or addressed, particularly with regard to seeing their families and being involved in shaping decisions around their future. Many times, we heard that the UNCRC rights should be built into, and be apparent in, the everyday practices of the institutions and services that those children and young people interact with, as well as the people with whom they come into contact. The guidance that is delivered as part of the legislation will be just as important as the wording of the bill.

In private session with a wide range of children and young people, we heard some compelling evidence on how their views should be at the centre of decisions that are made about them. Actually, to be blunt about it, decisions should not be made about them, but with them, and our recommendations strongly reflect that. Much of our stakeholder evidence and submissions for our public sessions centred around that issue, too. Many stakeholders called on the children’s rights scheme to

“include a specific requirement on Scottish Ministers to report on topics relating to access to justice, including ... avenues of redress when things go wrong ... support for children with protected characteristics or vulnerabilities”

and “child-friendly complaints procedures”, and to include the right to “advocacy services” and “legal aid”.

Josh Kennedy of the Scottish Youth Parliament said that child rights and wellbeing impact assessments

“should be published in a child-friendly format”,

and that children’s participation in decision making should be mandatory. I agree with him.

Another thing that young people were particularly clear on was that children should know their rights, and that, as the UNCRC is incorporated into law, more work should be done to ensure that education on those rights is done throughout childhood. That view was particularly clear in the sessions that we had with children who had experienced the justice system and the care system. In any given situation, their clear understanding of their rights should be ensured. A young person with experience in the justice system told us that

“A lot of professionals automatically assume as young people with lived experience we know about our rights when we don’t.”

It is one thing to have rights enshrined in law, but it is quite another to have those rights proactively and appropriately communicated by professionals to children in a range of settings.

That leads on to more general issues of education on children’s rights. It is true that a lot of those will not necessarily fit into, or be appropriate to, the bill; however, I was pleased to hear that the Deputy First Minister was mindful of the importance of rights education, not just for children but for the professionals who come into contact with children and young people.

I am pleased to say that there is also a child-friendly version of our stage 1 report, which practises what we preach. We feel that child-friendly communication from all public bodies that interact with or make decisions that affect children should involve documentation and materials that are easily read and understood by children. We also recommended that those should be in a range of languages.

The convener and I spent a great Saturday morning with Licketyspit theatre company, which works with young children across communities in Glasgow. In spending time with it—for some of which I had a toy caterpillar on my head—and taking part in its games and songs about children’s rights, it was clear to me that even the youngest children can get a handle on their rights if the communication is appropriate. It also helps if it is fun, which that morning definitely was.

I close by thanking the committee clerks and the outreach team. The work that they put in to gather children’s views was absolutely outstanding. It is on the outreach and evidence gathering that the report’s recommendations—and, ultimately, the success of the bill—will stand. It is already a great bill, and I am proud that Scotland is playing its part in fully realising children’s rights. The testimony of children in our scrutiny, and the Deputy First Minister’s clear and compassionate acknowledgement of what they have said, are set to make it even better.

Jamie Greene (West Scotland) (Con)

For the avoidance of doubt, I start by saying that Scottish Conservative members support the bill in principle. If we voice technical concerns, that is a reasonable approach; it does not mean that we do not share the ambitions of the members of the committee or of the stage 1 report.

I thank the members of the Equalities and Human Rights Committee, its convener, its clerks, and those who co-ordinated the committee’s work during what was a very difficult time for pulling together its stage 1 activity, as I know that that is not easy. I was briefly a member of that committee, and I know that its members—including Alex Cole-Hamilton and Mary Fee, who have spoken—are so passionate about the topic. I also know that a tremendous amount of stakeholder engagement took place in difficult circumstances.

When the bill was introduced in Parliament and the Cabinet Secretary for Education and Skills made a statement, I pledged that Conservative members would support measures that enhanced the rights of children both in our domestic law and in international conventions. That remains the case. However, the bill has been a long journey because, despite the convention’s having been agreed to in 1989, it has not been widely implemented, nor, I think, often understood. Scotland will be among the first countries in the world to implement it.

UNICEF has pointed out why the bill is so important and why such conventions are so relevant in today’s world. I quote:

“Millions of children continue to suffer violations of their rights when they are denied adequate health care, nutrition, education and protection from violence. Childhoods continue to be cut short”.

I think that we have made progress, both domestically and internationally, over the past 30 years, but surely what has happened in the past 12 months has only added to those pressures. Coronavirus has served to magnify many of those challenges, not just in Scotland, but throughout the world. I quote again from UNICEF:

“Children are not the face of this pandemic. But they risk”

becoming “its biggest victims”, because

“for some children, the impact will be lifelong.”

Here in Scotland, we know that Covid is exacerbating challenges that children face in our most disadvantaged communities and in households with less income. They have inevitably suffered through school closures, household job losses, exposure to substance abuses in their houses, domestic violence, and that lack of physical daily interaction and intervention from teachers who are trying their best, but who cannot protect every child in every household all the time.

I know that members’ inboxes will have been filled up over these past few months with a range of views on lockdown measures, restrictions and closures, and on the very issue of what state intervention is and what our rights and freedoms normally are—especially the rights of young people to an education, to social interaction, to exercise and to sport. I argue that we do not always need legislation or philosophical debates on rights in order to improve people’s quality of life or make good existing deficiencies in their rights.

Solutions in that regard often lie at the door of Governments. On the attainment gap, housing quality, the quality of the school estate, training and employment opportunities, the funding of outdoor learning and sport, meaningful LGBTI-inclusive education and young people’s experiences in care and interactions with the justice system, the Government has control over levers that could improve outcomes for young people in Scotland.

That said, incorporation of the UNCRC is a powerful method of putting those rights into law. Queen’s University Belfast found that incorporation “had significant effect” in the places where it happened.

The convention contains a number of obligatory and optional protocols to be considered by those who ratify it. They are wide ranging and their introduction is no mean task for a Government. Conservative members stand ready to work with the Government and the other parties to ensure that we enhance children’s rights in Scots law.

However, we must make good law. There are outstanding questions about whether and how the bill might conflict with other human rights legislation, as Alexander Stewart said. Will it interact and conflict with the Human Rights Act 1998 or the provisions in the European convention on human rights? If there is a conflict, which provisions will take precedence? Who will decide that? What assessment has been made of any interplay in the bill between devolved and reserved matters? How will such issues be dealt with on the least political basis possible? If there are changes to relevant United Nations conventions after the bill is passed, what effect will they have on Scots law? How will we keep pace? Is keeping pace necessarily a good policy if we do not know what changes will be made? Measures and mechanisms must be put in place to deal with conflicts quickly and easily.

I am aware of the time constraints, but it would be remiss of us to talk about young people’s rights without reflecting on the views of the Scottish Youth Parliament, which has been engaging with members of all parties. It supports the bill and has made a number of asks that I promised to mention in the debate. I know that at stage 2 the committee will, in good faith, consider the voices of young people.

I have talked about our technical issues with the bill, but it is not all doom and gloom; I take the cabinet secretary at his word when he says that he will approach stage 2 constructively, as will we. However, I am nervous, because—and this is my only reservation—we are trying to cram seven long years of hard work into seven short, frantic weeks, ahead of an election and in the middle of a pandemic. The work will progress at pace; it must also do so precisely. I am told by members who have been here much longer than I have that this Parliament has a habit of rushing through bad law in the closing days of a session—[Interruption.]

The Deputy Presiding Officer

Mr Greene must close, so he cannot take an intervention.

Jamie Greene

Given the genuine cross-party ambition to improve outcomes for all young Scots, let the bill not become one of those bad laws.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

It gives me great pleasure to speak in today’s historic debate. We often use the word “historic” in this Parliament, but we rarely use it as appropriately as we do today. I hope that at decision time we will come one crucial step closer to passing a groundbreaking bill that has the potential to improve the lives and life chances of Scotland’s children and young people.

Until the festive recess, I was a member of the Equalities and Human Rights Committee, which had the privilege of taking the bill through stage 1 and gathering evidence. I was initially disappointed to leave the committee, and it is fair to say that it was a great honour to have been involved in the progress of the bill so far. I will stay involved throughout the remaining stages.

I thank all members of the committee and the clerks for their scrutiny of the bill. We had really good evidence sessions from stakeholder groups and we held a huge number of outreach events so that we could engage directly with young people, to inform our stage 1 report, as the convener said—she will probably not mention this herself, so let me say that I think that she went to every single outreach event.

If anyone needs more convincing of the historic nature of the bill, they should take a look at the letter and briefing from the Together Scotland alliance of more than 50 organisations that work day in, day out with children and young people and have fought for a long time for the incorporation of the UNCRC into Scots law.

By incorporating the UNCRC into Scots law, we will build children’s rights into the fabric of decision making in Scotland. The bill will revolutionise the way in which we listen to children and take their rights into account. It will mean that children and young people are involved in the decisions that affect their lives, and that children’s rights are always respected, protected and fulfilled by public authorities, which will be under a statutory duty to do so. The bill ultimately shifts the balance of power and allows our children to use the courts to enforce their rights when they are not upheld.

I welcome the Scottish Government’s response to the stage 1 debate. It is fair to say, as Jamie Greene did, that there were few areas of disagreement. There was greater scrutiny of the more technical points; perhaps, in the committee’s view, that scrutiny strengthened the bill. One area where I welcome the Scottish Government’s response is in relation to the children’s rights scheme, which the committee heard a lot of support for during its evidence gathering. The committee asked the Scottish Government to strengthen section 11(3) by amending “may” to “must”; I am pleased that that has been agreed to. I am also pleased that the Scottish Government will introduce an amendment to strengthen the scheme by requiring ministers to include arrangements in respect of child-friendly complaints mechanisms and ensuring effective access to justice for children and young people.

Those changes, among others, particularly in section 11, are important to ensure that those who deal with children do so in a child-friendly manner and that children who may not normally engage with the process—the so-called hard-to-reach children, for want of a better term—are given the opportunities that others are given. We heard a lot in our outreach sessions about how important it is that all children and young people, from a variety of backgrounds and communities, feel included. I pay tribute to Mary Fee, who talked about the Gypsy Traveller community as an example of that.

There are areas in which there is scope for further amendments—mostly of a technical nature—at stage 2. One such area, in which there will perhaps be a bit more debate, is the commencement provision, which other members have mentioned. Together and the 50 or so children’s organisations are calling for commencement within six months of royal assent, citing Covid-19 and Brexit as factors. At this stage, I would tend to agree—I know that the cabinet secretary is still considering it. The pandemic is placing pressure like never before on our statutory bodies, but that is heavily and significantly outweighed by the impact that it has had on children’s rights. With school necessarily disrupted on public health grounds, restrictions on when children can see relatives and friends, children’s futures in doubt and their health needs impacted, it has never been more vital that children’s rights are upheld and protected with every measure possible. The pandemic has also laid bare the inequalities that exist—a point that was well made by Social Work Scotland in its submission.

On top of that, children in Scotland are faced with Brexit—again, it is not of their own doing and, in this case, is something that the adults who care for them and had the right to vote did not even vote for. It is shameful that children’s rights have been walked all over in that regard. Given the double whammy of Covid and Brexit, Scottish children’s rights should get additional protection as quickly as possible.

Overall, this is a significant and historic bill which, assuming that it is passed, may well be one of the most important laws that is passed by this Parliament. Organisations and political parties are largely united about Scotland becoming the first country in the UK to incorporate the UNCRC into law.

I finish by paying tribute to my constituent Ryan McShane, who many members, including the Deputy First Minister, know. As a care-experienced young person and advocate of children’s rights, this will be an important day for him, and he can be very proud. I would like it placed on record here in our Parliament that I am grateful for his input on the bill to the committee and directly to me as his MSP. Ryan’s input, experience and insights, and those of all the young people who were engaged in the process, have been invaluable and much appreciated, so I thank them.

I urge Parliament to vote for the principles of the bill at stage 1.

Elaine Smith (Central Scotland) (Lab)

I welcome the Equalities and Human Rights Committee’s support for the incorporation of UNCRC into Scots law, which is long overdue, and its work on the stage 1 report. I also congratulate and thank the children and young people, and all the campaigners, who have worked tirelessly to arrive at a point where children’s rights will be enforced instead of being an option.

Presiding Officer, you may recall that my first members’ business debate, on 3 February 2000, was about the UNCRC and the work being done by statutory and voluntary bodies at national and local levels to uphold the UN convention. I focused at the time on the child’s right to play. I also called for full implementation of the statutory role of the children’s commissioner to be introduced in Scotland, and I am glad that we now have that.

In that speech I highlighted a local project in Kirkshaws, Coatbridge, where parents, mainly women, worked against the odds to transform a local derelict site into a multipurpose play area suitable for all from toddlers to teenagers. Their motivation was the apparent connection at that time between the lack of facilities for play and leisure in Kirkshaws and young people becoming involved at an early age with alcohol, drugs and vandalism. I am happy to say that the project, Parent Action for Safe Play, has been positive for many children and young people over the years; such a project shows what respecting the rights of children looks like in practice when the abstract legal position may seem more difficult to grasp.

The right to play and have safe places to play is one of the many children’s rights that have been seriously affected by the current pandemic. Access to something as fundamental as fresh air and a small piece of open space has been denied to many children, particularly those living in poverty. During the pandemic, vulnerable children have been included with the children of key workers among those who can still attend school, but to fulfil our obligations to those children, we need to identify that they are actually attending. I know that NSPCC Scotland is concerned that, given the low attendance by vulnerable children last lockdown, there will be a similar pattern this time.

The Scottish Government’s report in April recognised that the number of vulnerable children will increase because of the additional pressures that are being placed on families and communities by the Covid-19 pandemic. I hope that the Government is doing its best to standardise how schools encourage vulnerable children to attend and to contact children and families when they are not attending. Vulnerable children must be visible in the data to ensure that families who are struggling can access the help that they need. Eradicating poverty is key to children’s rights but the soaring levels of poverty coupled with the ending of the £20 increase in universal credit will drive more families into poverty.

The ethos running through the UN convention is that of provision, protection and participation. The three key principles that should be applied through Scottish law and policy are those of non-discrimination, the child’s best interests being a primary consideration in all actions concerning children and the child’s view being given due weight. As I said in that first debate more than 20 years ago, mindsets need to change and the mainstreaming of the interests of children must become second nature. The pandemic has shone a light on all inequalities and the incorporation of the UNCRC into law will ensure that authorities have to take it into account when developing policy, not only in response to an emergency but at all times.

Fundamental to respecting the rights of children is understanding that some groups of children find it harder than others to have their voices heard, which some members have already mentioned—in particular, children who are looked after in a variety of situations by local authorities, those with disabilities, those living in poverty and those whose parents have no recourse to public funds.

Another area where we can show our commitment to children’s rights is in the provision of meals to children out of school, the nutritional standard of those meals and whether it is better to give parents cash payments. We are talking about the most fundamental right for children not to suffer hunger, which is why my proposed right to food (Scotland) bill is very much part of the debate on how we treat children. My previous member’s bill, which became the Breastfeeding etc (Scotland) Act 2005 was also focused on children’s rights and was aimed at protecting the child’s right to be breastfed in public.

The Scottish Human Rights Commission has stated that

“Incorporating international human rights treaties into domestic law is a critical component of securing their realisation.”

I note that the committee has responded to the requests from many stakeholders including Together Scotland to amend the commencement provision at stage 2 to ensure that the bill commences six months after royal assent, and I note the cabinet secretary’s comments on that. I hope that sufficient help will be given to public authorities to prepare for that and that the Government agrees to look into it, as outlined at the start of the debate by John Swinney.

The financial memorandum focuses on the costs of awareness raising about rights, but I am not convinced that it fully addresses the situation that our councils find themselves in. We know that they are struggling to deliver an ever-increasing number of services that the Scottish Government has passed on without sufficient funding.

From nurseries and schools to decent housing, reliable and preferably free broadband, suitable devices for study and the space and opportunity to play, we need to commit to what incorporation will look like in practice. We need the political will, together with the essential funding, to ensure that Scotland truly becomes a world leader in protecting the rights of children and young people.

Rona Mackay (Strathkelvin and Bearsden) (SNP)

The bill that we are debating is crucial to our nation’s future and I will be delighted to agree to its general principles at decision time—in fact, to quote the cabinet secretary, that will be a joy. The bill is crucial because it underlines the commitment of the Scottish Government and the Parliament to giving children a voice and respecting their rights.

Children are Scotland’s future. I could not be prouder that Scotland is set to become the first country in the UK to directly incorporate into domestic law the UN Convention on the Rights of the Child. I congratulate the Equalities and Human Rights Committee on all its hard work on the bill.

By implementing the convention to the maximum extent that is possible under the Parliament’s current powers, we will build children’s rights into the fabric of decision making, which is entirely as it should be. It is crucial that the bill also allows for incorporation of the UNCRC articles that currently go beyond the Parliament’s powers, if the powers change in the future. The bill will deliver a proactive culture of everyday accountability for children’s rights across public services.

Since I was elected in 2016, four acts have stood out for me above all the other important acts that we have passed—the Vulnerable Witnesses (Criminal Evidence) (Scotland) Act 2019, the Domestic Abuse (Scotland) Act 2018, the Children (Scotland) Act 2020 and John Finnie’s Children (Equal Protection from Assault) (Scotland) Act 2019. Those acts lay the foundation for a systemic shift in the emphasis on children’s rights—from a society in which children have traditionally not been consulted on a host of issues to one in which they are listened to and respected.

The bill is a significant step towards a future that is based on tolerance, equality, shared values and respect for the worth and human dignity of all people, whatever their age. It is one of the most significant pieces of legislation since devolution to help all children to reach their potential. It will include rights on health and education; disabled children’s rights; rights on leisure and play, fair and equal treatment and protection from exploitation; and the right to be heard. Those rights will apply to every child and young person, whatever their ethnicity, sex, religion, language, ability or other status is, whatever they think or say and whatever their family background is.

The bill will mean that children and young people are involved in the decisions that affect their lives and that children’s rights are always respected, protected and fulfilled by public authorities. Public authorities, including the Scottish ministers, will be under a statutory duty not to act incompatibly with the UNCRC’s requirements, as set out in the bill. If authorities act incompatibly, children, young people and their representatives will be able to use the courts to enforce children’s rights. That will deliver a proactive culture of everyday accountability for children.

In a private evidence session on the Children (Scotland) Bill, the Justice Committee heard from young people from Yello!, which is the young expert group for the improving justice in child contact cases project, who were supported by Scottish Women’s Aid and advocacy workers. All had experienced a fraught journey through the justice system. Their evidence was intensely moving and compelling, and their bravery and honesty were awesome.

The young people spoke about their experiences of being victims of domestic abuse and pawns in horrible adult mind games; about their feeling of not being listened to and not feeling safe; about no one asking what they wanted when they were in court; about being invisible; and about being made to have contact with someone whom they did not feel safe with. In short, adults made decisions for them without consulting them. On the day when we heard that evidence, the young people from Yello! were the adults in the room, and they made the Children (Scotland) Bill their bill, as it should be. I was delighted to hear about the child-friendly report that the Equalities and Human Rights Committee produced.

Care-experienced young people also contributed much to the Children (Scotland) Bill with their powerful evidence. That is why I am so pleased that the UN Convention on the Rights of the Child (Incorporation) (Scotland) Bill will put power in the hands of children and young people and will reaffirm our commitment to making Scotland the best place in the world to grow up in.

It is clear from the responses to the Scottish Government’s consultation that there is widespread support for directly and fully incorporating all the rights that the convention sets out. Many organisations have expressed a wish for the bill to come into force without delay; I, too, wish for that, and I am pleased that the Government will consider that at stage 2.

I am also pleased that the committee’s recommendation to change the wording in section 11 from “may” to “must” has been agreed by the Government.

Bruce Adamson, the Children and Young People’s Commissioner Scotland, said:

“The bill is really strong. It builds on an understood framework that we already know through the Human Rights Act 1998 and, importantly, it strengthens it.”—[Official Report, Equalities and Human Rights Committee, 19 November 2020; c 2.]

The bill contains specific measures to remove barriers that children and young people may face in realising their rights and accessing justice. Those provisions include giving the Children and Young People’s Commissioner Scotland the power to raise claims in the public interest.

Juliet Harris, of Together, the Scottish Alliance for Children’s Rights, said:

“the process of incorporation brings about a culture change in which children and young people are better recognised as rights holders”.—[Official Report, Equalities and Human Rights Committee, 26 November 2020; c 2.]

A former member of the Scottish Youth Parliament for LGBT Youth Scotland, said:

“It is easier to look at a written document that says that these are the things I should have, rather than kind of guessing what you think you should have. This is empowering for me as a young person.”

The bill will require that ministers publish a children’s rights scheme setting out the arrangements that the Government intends to put in place to fulfil the duty to act compatibly with the incorporated UNCRC rights and obligations. The Government and public authorities will also be required to report on steps that they have taken to be compatible with the incorporated rights and obligations.

In conclusion, the bill is a game changer for children and young people. It is a milestone for Scotland. I will be very proud to support its general principles at decision time.

Alison Harris (Central Scotland) (Con)

As a member of the Equalities and Human Rights Committee, I am pleased to speak about children’s rights today. I hope that we are able to do the issue justice in progressing the bill over the few weeks that we have left in this parliamentary session. It appears that there is broad agreement across all parties that the issue of children’s rights should be absolutely paramount. That sentiment is supported by Scotland’s major public sector bodies, too.

It is imperative that Scotland catches up with the other countries that have successfully implemented such legislation. The evidence is clear. A study commissioned by UNICEF found that in every country where it has been brought in it has had a significantly positive impact. The report states:

“Successful CRC implementation is key to the realisation of children’s rights ... where this has happened, it has had significant effect.”

We want it to have that impact here, too. That is what our young people need.

From speaking to young people who would benefit most from the legislation, some things are abundantly clear. First, it cannot simply be another paper commitment. The content of the bill must become a reality for young people in Scotland—it must not be just the usual warm words. Young people need the Government to put someone by their side to protect their rights. Many of the provisions in the bill should make that happen. It is vital that vulnerable young people know that we are on their side.

Although it is impossible to disagree with the aim of strengthening children’s rights, the Equalities and Human Rights Committee received several submissions that raised potential technical problems and unintended consequences. Although we accept and support the basic principles set out in the bill, there is no getting away from the fact that there is potential for problems. For example, there was concern that only public bodies would be covered by the legislation. That does not take into account private companies that operate contracts on behalf of the public sector—for example, a firm that looks after severely disabled children as part of a local authority arrangement.

We also heard from those who were worried about some vulnerable young people who may reach the age of 18 and effectively become age-barred from support. The bill should create the potential to ensure that people are not allowed to disappear from the radar. The transition into adulthood for those young people and their families can be the most challenging times of their lives.

Some witnesses spoke of the time limits and their fears that a person may want to take retrospective action later in life when they realise that their rights were infringed when they were a child or find that they are finally able to confront the fact that their rights were infringed.

We must also think about the finances. There is no point in passing legislation such as the bill if the resources to support it are not put in place. It is imperative that we are up front and honest about costs. It would be damaging if the initial costs of the bill were set out, only for them to significantly increase over time because of add-ons.

The public expect the state to invest in such bills, but they also expect their money to be used wisely and to be shown the benefit of financial commitments. The Faculty of Advocates has already raised concerns that the £2 million that has been mentioned is not a realistic figure. It pointed out to MSPs that

“the financial consequences are potentially very significant and likely to be underestimated in the Financial Memorandum.”

In addition, concern was expressed in the committee’s report that the Scottish Government has not yet given a timeframe for when the bill will come into effect. Timing is important, and it cuts both ways. When the bill is finally passed by Parliament, the Government has a duty to get moving and implement the principles that are voted for, but the process cannot be rushed. I am very concerned that we are only a couple of months from the end of the parliamentary session, yet this enormous bill still has to clear notable stages. If we hurry the bill through and make bad law, the consequences for young people could be severe and could leave us all in a worse situation than we are in currently.

As well as the shortness of time, we have to bear in mind how much parliamentary business is dominated by Covid-19. The pandemic is not only limiting the number of days that we meet; it also dominates the agenda when we are here. That is, of course, understandable, but it adds pressure to an already tight timeframe.

Rarely have children’s rights been put under more pressure than they have been during the coronavirus crisis. Whether it is through schools closing, exams being cancelled or the loss of social opportunities that generations before them got to enjoy, the odds are stacked against vulnerable children in Scotland. It is not a case of making sure that children know their rights but of adults and public organisations taking responsibility for those rights.

The Scottish Conservatives will vote for the general principles of the bill, and we will scrutinise any aspects of it that need to be further strengthened as it progresses through stages 2 and 3.

The Deputy Presiding Officer

We move to closing speeches. Mr Gray, you will need to put your card in for anything worth while to happen. After all this time—it is so easily done.

Iain Gray (East Lothian) (Lab)

I am delighted to find myself closing the debate for the Labour Party, because incorporation of the UNCRC into Scots law is a policy that we have long supported and believe to be overdue. Looking back, I saw that Kezia Dugdale was pressing for it 10 years ago, when I was her leader, and it also featured in our manifesto for the last Scottish Parliament elections. I am therefore delighted that the Government has introduced the bill and that it has support across the chamber.

Support for incorporation has also grown outside Parliament over the years, especially in Scotland’s youth and third sectors, which include the very organisations that understand the real impact that incorporation into Scots law will have on the lives of our young people.

Several members have referred to Together, the Scottish Alliance for Children’s Rights. It is an unprecedented alliance of 50 member organisations that welcome the introduction of the bill as a step forward for Scotland in helping to ensure that a comprehensive approach is taken to children’s rights. Alex Cole-Hamilton was right to say that the bill has lived up to the sector’s expectations.

Incorporation of the UNCRC will finally provide a proper framework for the provision of children’s rights in every part of Scotland and at every level of government. It will lead to greater consistency in children’s rights—in particular, as many members have referred to, their right to be heard and to take part in decision making that affects them. A number of committee members have said that listening to children and giving them a part in decision making, for which the committee should receive credit, has been an important part of the process.

Wales, like Scotland, has previously passed legislation requiring ministers to have regard to the UNCRC. Indeed, the Children’s Commissioner for England is required to have regard to and monitor the implementation of the convention. However, the Deputy First Minister was quite right when he said that the bill will make Scotland the first country in the UK to make the convention and the rights under it fully legally enforceable. We can be proud of that.

Of course, we are not the first country in the world to take this step, and Alison Harris was right when she said that international evidence shows that in countries where incorporation has taken place and the UNCRC has formal status, outcomes for children have clearly improved. Incorporation does that by becoming an influential touchstone for decision makers that is effective across legislation, policy and practice. That results in a culture change that directly impacts on the application of children’s rights principles in national law and policy.

Ross Greer made the important point that incorporation of the UNCRC through the bill that is before us could be seen as a dry legislative process, but the fact of the matter is that incorporation will affect the real, daily lives of children across Scotland.

The passing of this legislation may be a necessary condition for the culture change that we want to see but, as a number of speakers have said, it is not sufficient. We and our successors will have to show ourselves as being up to the challenge of making these rights real.

Our track record is not always the best. Mr Cole-Hamilton was right to point out that it is years since we passed a law to raise the age of criminal responsibility to 12 and patted ourselves on the back for doing so. However, that law has never been commenced and, by the standards of the UNCRC, would not be enough: the age of criminal responsibility should be 14. Today, our age of criminal responsibility remains eight.

Alex Cole-Hamilton

Does Iain Gray recognise that, at eight, the age of criminal responsibility in Scotland is lower than it is anywhere else in the British isles and in those human rights exemplars, Russia and China, on which we would otherwise sit in judgment?

Iain Gray

That is the case, and it makes it worse to know that we passed legislation to move on from that position but that that law has not been commenced. That is why many members of the committee who spoke in the debate made it clear that they continue to believe that we should amend the bill during stage 2 to insert a commencement date. I hope that the Deputy First Minister will consider that.

A number of speakers have talked about the UNCRC in the context of the Covid crisis. They were right to do so, because that is another area in which we have not always been as cognisant of children’s rights as we should have been. The Children and Young People’s Commissioner Scotland has consistently been critical of Government, believing that ministers have not done enough to protect children’s rights to an education in the light of school closures. Meanwhile, the “SQA: Where’s Our Say?” project has given voice to young people who believe that the certification appeals process breached their rights.

My point is that children’s rights are a real thing that affect children’s real, day-to-day lives. In fairness, Mr Swinney and the SQA have acknowledged that, which we hope will lead to a different approach in the months ahead as we continue to try to deal with the impact of the pandemic.

Children’s rights are much more than an intellectual or cultural construct; they impact powerfully on children’s lives. Therefore, the legislation that we will proceed with today is of critical importance to future generations. I believe that the general principles of the bill will pass later, and that that will be a good afternoon’s work by the Parliament.

Rachael Hamilton (Ettrick, Roxburgh and Berwickshire) (Con)

I am delighted to close the debate on behalf of the Scottish Conservatives and I place on record my thanks to the Equalities and Human Rights Committee for its work on the bill. It has taken some time but we are finally here, albeit with a worryingly short time to see the bill pass through Parliament.

The UNCRC was a milestone treaty that recognised the importance of childhood and the unique needs of children across the globe at a time when children’s rights had been ignored for many years. It is heartening to hear the passion for the bill that has been exuded by many members, particularly Alex Cole-Hamilton and Mary Fee.

Alison Harris rightly said that vulnerable people should know that we are on their side. The Scottish Conservatives want to see children and young people included in all aspects of life. We will support the general principles of the bill at stage 1. However, during its later stages, we will seek to lodge amendments to ensure that the bill is strengthened to reflect the concerns of a range of stakeholders, including public authorities, the Children’s Parliament, the Scottish Youth Parliament, the Law Society of Scotland and organisations that are involved with children’s rights.

As with all legislation, we must first analyse what current legislation fails to achieve. The bill is not a silver bullet. There is already a host of legislation covering numerous aspects of the UNCRC, from the Children (Scotland) Act 1995 to the Children’s Hearings (Scotland) Act 2011. Right now, we could go further to protect and uphold children’s rights by using current legislation. The bill must require any future legislation to be assessed for its compatibility with UNCRC requirements.

Scotland’s children have been let down on a range of issues. John Swinney is right to want a fair and equal society for children—we all do. He talks about the effects of the pandemic but we know that there were deficiencies that left children in Scotland behind before the pandemic. Without re-running the wide-ranging and strong arguments that the committee heard in evidence, I hope that the bill will improve outcomes for all children in Scotland, especially in education.

I echo what Iain Gray said in his closing speech for Labour. Whether we are talking about falling standards in our schools, the SQA exam results fiasco or the disproportionate effect of the Covid-19 pandemic on children and young people, children across the country have a right to a good education and to development. Since day 1 of the pandemic and the subsequent lockdown, children’s right to education has been hindered. Lindsay Paterson, professor of education policy at the University of Edinburgh, has collated research that estimated the educational gap caused by the schools shutdown.

The Cabinet Secretary for Education announced an additional £100 million to be invested over the coming years to tackle the impact of lockdown on schools and pupils, but we still hear of pupils in deprived areas being unable to keep up with online teaching due to a lack of technology. Children across the country are having their teaching hours cut due to remote learning, while some in rural areas—including many of my constituents—struggle to gain access to the full range of online tools because of poor broadband, as mentioned by Elaine Smith.

Some newly formed groups might ask whether children’s rights have been respected in the balance between health risks and educational development. Jamie Greene raised the question whether children have the right to social interaction.

In her submission to the consultation on the incorporation of the UNCRC, Dr Tracy Kirk of Glasgow Caledonian University highlighted the damage caused by the SQA exams fiasco last August. She believed that children’s right to be listened to had been ignored. Regarding that process, all the groups that took part in the committee’s engagement work mentioned the lack of redress as an example of a time when young people’s voices had been ignored. One young person said that the 2020 SQA process had been “a kick in the teeth”; they went on to say how that had impacted on their mental health. As Mary Fee said, the bill will give children more power.

I am concerned about the impact that the bill could have on children who receive their education on a different side of the border from where they live—for example, they come from England but attend school in Berwickshire. There are questions about how the bill would work with the UK Human Rights Act 1998, especially in relation to children from England who attend Scottish schools. That should be clarified, and I intend to pursue the issue.

My colleague Alexander Stewart has already made the point that section 11(3) requires strengthening. Fulton MacGregor also raised the need for the Scottish Government to strengthen that section by amending the wording from “may” to “must”, so that a children’s rights scheme must be set out in the bill. I believe that the Scottish Government is committed to doing that.

Many of my colleagues who spoke in the debate raised the concerns of stakeholders such as the Law Society of Scotland, noting the number of duties that the bill places on public authorities and that that number is likely to grow. We do not yet know how much it will cost to provide UNCRC training to staff in public authorities and the private contractors that public authorities use. That could have significant financial implications.

The bill as introduced will have to be amended at stage 2. In the short time frame that we have, we will work with parliamentary colleagues to make good law and not bad law to incorporate the UNCRC into Scots law, as far as that is possible within the Parliament’s powers. We will support the bill’s general principles at decision time.

The Deputy Presiding Officer

I call the Deputy First Minister, John Swinney, to close the debate for the Scottish Government.

John Swinney

I draw the debate to a close with a word of thanks to members of the Scottish Parliament across the political spectrum for their contributions to the debate and the support that has been expressed for the legislation that is before Parliament at stage 1. It is properly reflective of a landmark day when Parliament considers legislation of this magnitude.

That has been helped, of course, by the Equalities and Human Rights Committee’s scrutiny of the bill. I am grateful to the committee’s convener, Ruth Maguire, for her remarks about the bill and issues that arise from it. I will say a bit more about the commencement issues in a moment, but she specifically raised with me the issue of ensuring that children with protected characteristics are recognised in the bill. I fully support that objective, but the mechanism with which the Government has opted to take the issue forward is, in essence, that of incorporating article 2 of the UNCRC, which assumes that children’s rights are guaranteed without discrimination. That provides a universal protection for children and avoids the necessity for specific lists of protected characteristics. We will obviously reflect further on the convener’s points, and I am happy to engage further on that question, but that is the approach that we plan to take.

Neil Findlay (Lothian) (Lab)

I have not been following the bill closely, but an answer that I got today to a parliamentary question said that the Government did not know how many children were not accessing online learning, which is similar to the point that Elaine Smith made earlier. Given that the Government is deciding on budgets to provide additional resources to local government but does not know the extent of the problem, how would the bill being implemented ensure that situations like the one that I described were not repeated and that all children had access to online learning?

John Swinney

Mr Findlay clearly has not been following the debate. We did a data collection exercise with local government last summer, which identified 70,000 young people who did not have digital connectivity. We therefore put money in place that enabled 70,000 young people to get digital connectivity, and we continue to engage with local authorities on that question. That deals directly, and firmly, with Mr Findlay’s particular point.

Looking at the question of commencement, I acknowledge the significance of the committee’s point in relation to commencement timetables. I will also address some of the issues that Alex Cole-Hamilton put on the record, because, as is often the case with Mr Cole-Hamilton, things are not always as he sets out to the Parliament. In relation to the commencement of the Age of Criminal Responsibility (Scotland) Act 2019, the first set of commencement regulations came into effect on 29 November 2019, removing the offence ground for referring a child under 12 to a children’s hearing and commencing provisions for victims. Since then, it has been possible to refer a child under 12 to a children’s hearing only on welfare and protection grounds, which means that it has not been possible since the end of 2019 for children under 12 to obtain criminal convictions. To all intents and purposes, therefore, the age of criminal responsibility is, in effect, 12.

A complex set of regulations has to be put in place. The second set of regulations was put in place on 30 March 2020 and the third set on 30 November 2020, and part 1 of the 2019 act will be commenced as part of the final set of commencement regulations that are planned for autumn 2021.

Alex Cole-Hamilton

Will the cabinet secretary give way?

John Swinney

I simply put that detail on the record to make it clear that what Mr Cole-Hamilton put on the record earlier is not a clear, accurate and comprehensive distillation of what has happened.

The Deputy Presiding Officer

Before you take the intervention, cabinet secretary, I say to Alex Cole-Hamilton that he should not keep on his feet. I do not want to have two members on their feet at the same time.

John Swinney

I give way to the member.

Alex Cole-Hamilton

My apologies, Presiding Officer.

I am very grateful to the cabinet secretary for giving way. I am also grateful to him for illuminating members about commencement, because some of that was news to me. However, is that consistent with the warm words that we have heard in the chamber today about children’s rights? Our age of criminal responsibility, when it finally reaches 12, will still be two years south of the UN Committee on the Rights of the Child’s recommended international minimum.

John Swinney

I am grateful to Mr Cole-Hamilton for confirming to Parliament that his earlier comments were not well informed and that he did not actually catch up on the detail. I suspect that that reinforces my earlier point that we should consider very carefully the points that he puts on the record before we accept them to be accurate.

The age of criminal responsibility is an issue on which Parliament has legislated. Obviously, the contents of the bill provide us with the opportunity to consider such issues, and the Government’s commitments in the area do likewise.

I agree very much with the sentiment expressed by Iain Gray, Ross Greer and Mary Fee about the importance of the legislation having an impact on the lives of children and young people. It is critical that the bill is brought to life by ensuring that children have a different experience in our society.

There are challenges and multiple factors that the Government must weigh up in how we respond to the application of the rights of individuals in our society during the Covid pandemic. Yes, of course, children are entitled to education, and they are receiving it through the delivery of remote learning, because we would not be doing children or anyone in our society any favours if we did not take the measures necessary to suppress the prevalence of the coronavirus. However, there will be competing factors that affect how we can enable individuals to exercise their rights.

I pay tribute to Mary Fee, who has given a huge amount to the debate over many years and has championed many of the issues. I was particularly heartened by her comments, and those of Elaine Smith, about the bill. One of Elaine Smith’s points, which I very much agree with and commit to, was about the importance of changing mindsets through the passing of the legislation. It is fundamental that we do that as a consequence of the proposed changes.

Gillian Martin highlighted the importance of communicating the rights that the bill will assure, and the Government commits itself to supporting such an endeavour. I know that many stakeholders would be willing participants in that process.

An issue that was raised by Alexander Stewart and Jamie Greene is the interaction between the rights that are being assured in the bill and other human rights legislation. As members know, and as has been acknowledged in the debate, I have taken a maximalist approach. I have sought to ensure that, within the constraints of the legislative framework in which we operate, we do as much as we possibly can to assure the incorporation of the maximum range of rights of the United Nations Convention on the Rights of the Child into Scots law where we have the legislative competence to do so.

There are, of course, areas in which I would like to assure rights further. However, I fear that some of that context might well be eroded by the approaches that the United Kingdom Government is taking in relation to the Human Rights Act 1998 and the European convention on human rights. I worry that our maximalist position in the bill might find itself rubbing up against an approach to rights in the United Kingdom that might erode some of the things that we, in this Parliament, might well believe to be important, valuable and requiring to be assured. However, because of changes to rights legislation elsewhere, those issues might be taken outwith our competence to resolve. It is something that the Parliament must be mindful of as we consider the questions that are before us in relation to the bill.

Rona Mackay described the bill as a “game changer for children” and “a milestone for Scotland.” Those words convey an appropriate sentiment with which to close my speech as I commit the Government to engaging constructively with the committee at stage 2 on the issues that I have raised and on the other issues that have been raised during the debate, as well as to finding ways of addressing the aspiration that all members have for us to successfully incorporate the United Nations Convention on the Rights of the Child into domestic Scots law. At a moment when we can assure children of their rights within our country, we will do everything within our legal framework to ensure that that is the case. We must then build on that by ensuring that an awareness and understanding of those rights is there for every child and that they can experience and live with those rights here, in Scotland.

The Presiding Officer (Ken Macintosh)

There are four questions to be put this evening. The first question is, that motion S5M-23884, in the name of Humza Yousaf, on the Covert Human Intelligence Sources (Criminal Conduct) Bill legislative consent motion, be agreed. Are we agreed?

Members: No.

The Presiding Officer

There will be a division. There will be a short suspension to allow members, both in the chamber and online, to access the voting app.

The Presiding Officer

We are back in session, and we will go straight to the vote. The question is, that motion S5M-23884, in the name of Humza Yousaf, on the Covert Human Intelligence Sources (Criminal Conduct) Bill legislative consent motion, be agreed to. Members may cast their votes now. This will be a one-minute division.

The vote is now closed. If any members believe that they were not able to register their vote, please let me know through a point of order.

The Cabinet Secretary for Economy, Fair Work and Culture (Fiona Hyslop)

On a point of order, Presiding Officer. I would have voted yes.

The Presiding Officer

You would have voted yes; I will make sure that your vote is added to the voting roll.

Jackie Baillie (Dumbarton) (Lab)

On a point of order, Presiding Officer. According to my phone, there was a problem and the digital voting connection could not be started. I would have voted for the motion.

The Presiding Officer

I confirm that your vote was registered, Ms Baillie.

Finlay Carson has a point of order.

I say to Bruce Crawford that his vote was registered, so there is no need for him to make a point of order.

I will try Finlay Carson one more time for his point of order. I apologise to him—we have lost the connection with him. I will have to call the result of the vote, but he can make a point of order later if he wishes to.

For

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Balfour, Jeremy (Lothian) (Con)
Beamish, Claudia (South Scotland) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Boyack, Sarah (Lothian) (Lab)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Harper, Emma (South Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Kelly, James (Glasgow) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Lochhead, Richard (Moray) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Marra, Jenny (North East Scotland) (Lab)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
McNeill, Pauline (Glasgow) (Lab)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Rennie, Willie (North East Fife) (LD)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Sarwar, Anas (Glasgow) (Lab)
Smith, Elaine (Central Scotland) (Lab)
Smyth, Colin (South Scotland) (Lab)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Tomkins, Adam (Glasgow) (Con)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wishart, Beatrice (Shetland Islands) (LD)
Yousaf, Humza (Glasgow Pollok) (SNP)

Against

Ballantyne, Michelle (South Scotland) (Reform)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Carlaw, Jackson (Eastwood) (Con)
Chapman, Peter (North East Scotland) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Golden, Maurice (West Scotland) (Con)
Greene, Jamie (West Scotland) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harris, Alison (Central Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Kerr, Liam (North East Scotland) (Con)
Lindhurst, Gordon (Lothian) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
McDonald, Mark (Aberdeen Donside) (Ind)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Wells, Annie (Glasgow) (Con)
Whittle, Brian (South Scotland) (Con)
Wightman, Andy (Lothian) (Ind)

The Presiding Officer

The result of the division on motion S5M-23884, in the name of Humza Yousaf, on the Covert Human Intelligence Sources (Criminal Conduct) Bill legislative consent motion, is: For 92, Against 27, Abstentions 0.

Motion agreed to,

That the Parliament agrees not to consent to the UK Covert Human Intelligence Sources (Criminal Conduct) Bill, as it contains insufficient independent oversight and satisfactory safeguards.

The Presiding Officer

The next question is, that motion S5M-23883, in the name of John Swinney, on the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill, be agreed to.

Motion agreed to,

That the Parliament agrees to the general principles of the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill.

The Presiding Officer

The next question is, that motion S5M-23606, in the name of Daniel Johnson, on the Protection of Workers (Retail and Age-restricted Goods and Services) (Scotland) Bill, be agreed to. As the bill is being considered at stage 3, we will have a division.

The vote is now closed. If any members believe that they were unable to access the voting app, they should let me know.

For

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Reform)
Beamish, Claudia (South Scotland) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bowman, Bill (North East Scotland) (Con)
Boyack, Sarah (Lothian) (Lab)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Campbell, Aileen (Clydesdale) (SNP)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Corry, Maurice (West Scotland) (Con)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Golden, Maurice (West Scotland) (Con)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greene, Jamie (West Scotland) (Con)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harper, Emma (South Scotland) (SNP)
Harris, Alison (Central Scotland) (Con)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Kelly, James (Glasgow) (Lab)
Kerr, Liam (North East Scotland) (Con)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Lindhurst, Gordon (Lothian) (Con)
Lochhead, Richard (Moray) (SNP)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Marra, Jenny (North East Scotland) (Lab)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McDonald, Mark (Aberdeen Donside) (Ind)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
McNeill, Pauline (Glasgow) (Lab)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Rennie, Willie (North East Fife) (LD)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Sarwar, Anas (Glasgow) (Lab)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Elaine (Central Scotland) (Lab)
Smyth, Colin (South Scotland) (Lab)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Tomkins, Adam (Glasgow) (Con)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wells, Annie (Glasgow) (Con)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Whittle, Brian (South Scotland) (Con)
Wightman, Andy (Lothian) (Ind)
Wishart, Beatrice (Shetland Islands) (LD)
Yousaf, Humza (Glasgow Pollok) (SNP)

The Presiding Officer

The result of the division on motion S5M-23606, in the name of Daniel Johnson, on the Protection of Workers (Retail and Age-restricted Goods and Services) (Scotland) Bill, is: For 118, Against 0, Abstentions 0.

Motion agreed to,

That the Parliament agrees that the Protection of Workers (Retail and Age-restricted Goods and Services) (Scotland) Bill be passed.

The Presiding Officer

The final question this evening is that motion S5M-23863, in the name of Kate Forbes, on the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill financial resolution, be agreed to.

Motion agreed to,

That the Parliament, for the purposes of any Act of the Scottish Parliament resulting from the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill, agrees to any expenditure of a kind referred to in Rule 9.12.3(b) of the Parliament’s Standing Orders arising in consequence of the Act.

The Convener (Ruth Maguire)

Good morning, and welcome to the fourth meeting in 2021 of the Equalities and Human Rights Committee. We have one item on today’s agenda, which is stage 2 consideration of the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill. Joining the committee are Rachael Hamilton and the Minister for Children and Young People, Maree Todd, and her officials. You are all very welcome.

Today will work well if we take it slow and steady. When I call you to speak, please pause before speaking to allow your microphone to be switched on. Members should have a copy of the bill as introduced, the marshalled list of amendments, which sets out the amendments in the order in which they will be disposed of, and the groupings.

There will be one debate on each group of amendments. I will call the member who lodged the first amendment in that group to speak to and to move that amendment, and to speak to all the other amendments in the group. I remind members who have not lodged amendments in the group but who wish to speak that they should request to speak by typing R in the BlueJeans chat function. Please do this once I have called the relevant group, and please speak only when I call your name. I ask anyone contributing to make sure that their contributions are relevant to the amendment or amendments being debated.

The standing orders give any Scottish minister a right to speak on any amendment. I will therefore invite the minister to contribute to the debate just before I move to the winding-up speech. The debate on the group will be concluded by my inviting the member who moved the first amendment in the group to wind up. Following the debate on each group, I will check whether the member who moved the first amendment in the group wishes to press it to a vote or to withdraw it. If they wish to press it, I will put the question on that amendment.

If a member wishes to withdraw their amendment after it has been moved, they must seek the committee’s agreement to do so. If any committee member objects, the committee will immediately move to the vote on the amendment. If any member does not want to move their amendment when called, they should say, “Not moved.” Please note that any other MSP may move such an amendment. If no one moves the amendment, I will immediately move to the next amendment on the marshalled list.

Only committee members are eligible to vote. When I put the question on an amendment, any committee member who disagrees should type N in the chat function. The vote will be conducted by roll call in the following order: Alex Cole-Hamilton, Mary Fee, Joe FitzPatrick, Alison Harris, Gillian Martin and Alexander Stewart, with my vote given last.

When called, each committee member should respond with either “yes”, “no” or “abstain”. There will be a brief pause while the clerks confirm the vote, which I will then read out. Should you consider that your vote has been incorrectly recorded, please let me know as soon as possible. I will pause to provide time for that.

In the unlikely event that time is against us this morning and we do not manage to complete our consideration of the amendments by 1.30 pm, we will continue consideration of the bill at our next meeting. If we lose connection to any member or to the minister, I will suspend the meeting until we reconnect. Depending on how long proceedings take, I might suspend for a five-minute comfort break at a suitable point.

We will now begin stage 2 proceedings.

Section 1 agreed to.

Schedule agreed to.

Section 2 agreed to.

Section 3—Power to modify the schedule

The Convener

Amendment 6, in the name of Alexander Stewart, is in a group on its own.

Alexander Stewart (Mid Scotland and Fife) (Con)

Good morning. The effect of amendment 6 would ensure that the Scottish ministers consult on regulations made under section 3. Consultation is an important aspect of law making; it helps to get the law right and ensures that those affected become aware of any changes in law and have their say when the law is made.

Regulations made under section 3 may be used to amend the schedule to account for amendments to the convention and/or any optional protocol. At this time, we do not know what amendments might be made to the convention or the optional protocols. If such changes are proposed, we hope that we will get the opportunity to be involved in the actual process of amending the convention. Even if that does not happen, we should be aware of the effect of any changes and be given the opportunity to comment on them. Alterations to administrative or practical matters might need to be put in place for the changes to be fully made.

Those are just some of the reasons why consultation is necessary. The Law Society of Scotland has promoted amendment 6 on the basis that the Scottish ministers should be aware of all points of view before using such a wide-ranging power to make amendments.

I move amendment 6.

The Minister for Children and Young People (Maree Todd)

Section 3 sets out the UNCRC requirements, which consist of text from the convention and the first two optional protocols. Section 3 also gives the Scottish ministers the power to modify the schedule in specific ways by regulation. It is important that the Scottish ministers can modify the schedule in line with any changes to the UNCRC or its optional protocols, or if an optional protocol is ratified by the United Kingdom. It might also be appropriate to modify the schedule should the powers of the Parliament change in the future to, for example, add the articles of the convention that are not currently included due to reasons of legislative competence.

It was always envisaged that there would be a high degree of scrutiny regarding the use of such a power. Consequently, the power is subject to the affirmative procedure, which requires that the Parliament must approve any such modifications to the schedule before they come into effect. I agree with Alexander Stewart that, given the power’s significance and its potential impact on public authorities, ensuring a transparent and accountable approach is important. As a matter of practice, the Scottish ministers would seek views prior to the use of the power in section 3. I am therefore happy to support amendment 6 and I ask the committee to support it. It might be necessary to make some minor adjustments to the wording of the provision at stage 3 for the purposes of consistency with the rest of the bill. I am happy to work with Alexander Stewart on that.

Alexander Stewart

I thank the minister for her positive comments on amendment 6. I look forward to working with her if that is required as we progress.

Amendment 6 agreed to.

Section 3, as amended, agreed to.

Section 4—Interpretation of the UNCRC requirements

The Convener

Amendment 2, in the name of Alison Harris, is grouped with amendments 7, 51 and 8.

Alison Harris (Central Scotland) (Con)

Amendment 2 would ensure that the courts “must” rather than “may” consider the sources of interpretation, while recognising that they are not determinative. That would strengthen the bill and ensure that Scotland kept pace with the highest standards of protection internationally. Amendment 2 also reflects the recommendation of the First Minister’s own advisory group on human rights leadership:

“There must be an obligation on courts and tribunals when interpreting the rights to have regard to international law (including UN treaties, treaty body decisions, General Comments and recommendations). It should also state that they may have regard to comparative law.”

It is widely recognised that those sources are not binding sources of law. Nevertheless, they provide invaluable and authoritative interpretive analyses of how to give substance to rights contained in the UNCRC. Strengthening the bill’s provision would not mean that the courts would have to apply those sources; rather, it would indicate the importance that should be placed on considering those sources for interpreting the UNCRC requirements.

I move amendment 2.

Maree Todd

Unlike when the Human Rights Act 1998 incorporated the European convention on human rights, there is no body of case law regarding the UNCRC from any international court that is equivalent to the European Court of Human Rights. It will take time for Scottish courts to develop their own case law relating to and interpreting the rights and obligations that are being incorporated by the bill.

The bill already recognises the importance of the non-binding sources of interpretation that courts may take into account when those are relevant to determining a case. Those sources include the preambles to the convention, the first optional protocol and the second optional protocol. They also include those provisions in the convention and in the first and second optional protocols that have not been incorporated by the bill because they fall outwith the powers of this Parliament.

As the Deputy First Minister made clear in his response to the committee’s stage 1 report, the Government considers that it is appropriate for the courts to retain discretion on whether any sources should be taken into account in the cases that come before them. Parties to a case will be able to plead the relevance of any source to a case and it will then be for the courts to make a determination. On that basis, I ask the committee not to support amendment 2.

The question of whether the bill should list additional sources of interpretation was a source of significant interest and discussion at stage 1. I have listened carefully to the evidence given to the committee about which specific additional sources should be listed in the bill.

Although I agree with Mary Fee that comparative law or materials emanating from the other United Nations human rights treaties may provide useful context to judicial decision making, I believe we must strike a balance between signalling relevant sources to courts and tribunals and being overly prescriptive.

The list at section 4(2) is not intended to be exhaustive or to list every source that a court or tribunal may consider appropriate. Amendment 51 risks straying into that shopping list territory and, as drafted, would appear to have the effect of excluding general comments and concluding observations emanating from the UN Committee on the Rights of the Child. On that basis, I ask the committee not to support amendment 51.

On balance, I believe there is a compelling rationale for amending section 4 to include sources that emanate from the UN Committee on the Rights of the Child. As the Deputy First Minister said during the stage 1 debate, although the sources that emanate from that committee are not legally binding, they provide authoritative guidance on how the articles of the UNCRC should be implemented. It is important to recognise the role that the Committee on the Rights of the Child plays in supporting the effective implementation of the UNCRC across the world.

Amendment 7 will expand the list of sources that section 4(2) allows a court or tribunal to take into account. That list will now include general comments, concluding observations, views and findings under the third optional protocol and recommendations following days of general discussion.

Amendment 8 will remove section 5(4), which defines the term “the third optional protocol”. As a result of amendment 7, that term is now defined in section 4(2), meaning that section 5(4) will not be required.

As the Deputy First Minister said in his evidence to the committee, the bill seeks to promote a cultural change on children’s rights in public authorities. I consider amendments 7 and 8 to be an important element of that cultural change because they signpost for courts and public authorities the sources that are directly relevant to the implementation of the UNCRC.

I urge the committee not to support amendments 2 and 51.

The Convener

No other member has indicated a wish to speak, so I ask Alison Harris to wind up and to press or withdraw amendment 2.

Alison Harris

The necessity for amendment 2 can be demonstrated through existing case law. In recent years, courts have begun having regard to unincorporated international treaty provisions and general comments as important sources of law and of interpretation.

For example, in a case before the Supreme Court challenging the benefit cap, the court cited the UNCRC’s protection of the best interests of the child and referred to general comment 14 from the UN Committee on the Rights of the Child as providing authoritative guidance. However, that is not a routine approach for the courts. For that reason, it is appropriate for the bill to include a “must” rather than a “may” duty.

I press amendment 2.

The Convener

Forgive me: I did not bring in Mary Fee to speak to amendment 51. We will suspend briefly to sort that.

The Convener

[Inaudible.]—Fee, who I should have called to speak to amendment 51 and the other amendments in the group.

Mary Fee (West Scotland) (Lab)

Amendment 51 in my name seeks to strengthen the bill by including jurisprudence from the United Nations treaty bodies, which would provide greater clarity for the courts. The amendment would allow for the parameters of the UN treaty bodies—which oversee the Convention on the Rights of Persons with Disabilities, the Convention on the Elimination of All Forms of Discrimination against Women, the International Convention on the Elimination of All Forms of Racial Discrimination, the International Covenant on Economic, Social and Cultural Rights and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment—to act as guidance and to help clarify the content of the UNCRC.

With that emphasis on how the UNCRC fits within the wider human rights framework, the things that the courts take into account will always need to encompass a wider human rights approach. That will lead to a bill that considers the work of all the UN treaty bodies, thus making it a stronger bill for all children.

Amendment 51 has been supported by Together, and I urge committee members to support it.

Alex Cole-Hamilton (Edinburgh Western) (LD)

I will speak in favour of Mary Fee’s amendment 51, and I congratulate her on lodging it. It speaks to the fact that the UNCRC does not exist in a vacuum; it exists in an ecosystem of a range of human rights conventions, treaties and law. As such, if the eventual act is to be a genuinely living document and if it is to make rights real for Scotland’s children, it needs to act compatibly not just with the general comments of rapporteurs and the Committee on the Rights of the Child but with the comments and observations made in respect of the other treaties, rights and conventions. I therefore support Mary Fee’s proposal.

The Convener

Alison, I appreciate that you have already made your winding-up speech on this group, so I ask you simply to press or withdraw amendment 2.

Alison Harris

I am pressing the amendment.

The Convener

The question is, that amendment 2 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Cole-Hamilton, Alex (Edinburgh Western) (LD)
Fee, Mary (West Scotland) (Lab)
Harris, Alison (Central Scotland) (Con)
Stewart, Alexander (Mid Scotland and Fife) (Con)

Against

FitzPatrick, Joe (Dundee City West) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)

The Convener

The result of the division is: For 4, Against 3, Abstentions 0.

Amendment 2 agreed to.

Amendment 7 moved—[Maree Todd]—and agreed to.

Amendment 51 moved—[Mary Fee].

The Convener

The question is, that amendment 51 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Cole-Hamilton, Alex (Edinburgh Western) (LD)
Fee, Mary (West Scotland) (Lab)
Harris, Alison (Central Scotland) (Con)
Stewart, Alexander (Mid Scotland and Fife) (Con)

Against

FitzPatrick, Joe (Dundee City West) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)

The Convener

The result of the division is: For 4, Against 3, Abstentions 0.

Amendment 51 agreed to.

Section 4, as amended, agreed to.

Section 5—Duty to modify section 4 on ratification of the third optional protocol to the Convention

Amendment 8 moved—[Maree Todd]—and agreed to.

Section 5, as amended, agreed to.

Section 6—Acts of public authorities to be compatible with the UNCRC requirements

The Convener

Amendment 52, in the name of Mary Fee, is grouped with amendments 9, 9A and 9B.

Mary Fee

Amendment 52 seeks to bring greater clarity to section 6. The amendment’s purpose is to ensure that the bill covers all public bodies that have duties in respect of the care of a child. Making that explicit will strengthen the bill in the interests of the children whom it seeks to protect, and widening the definition of a public authority to include such bodies will give greater protection to more children and ensure that no children are missed as a result of a loophole in legislation. The amendment will strengthen the bill and give greater protection to children and their ability to access their rights, and I ask members to support it.

Amendment 9A, in my name, seeks to strengthen amendment 9, which was lodged by the Scottish Government. The purpose of amendment 9A is to give more clarity on how

“functions of a public nature”

will meet the requirements of the UNCRC, as set out in amendment 9B. I urge the committee to support amendment 9A.

Amendment 9B, also in my name, seeks to further amend amendment 9 to ensure that there is no accountability gap. All children should have equal treatment, regardless of who is providing the service. If amendment 9B is agreed to, the bill will require that contracts that are carried out must

“fulfil the rights set out in the UNCRC requirements”.

That will provide greater accountability and ensure that private companies that are carrying out functions of a public nature are not allowed to escape the UNCRC requirements. The amendment is supported by Together—the Scottish Alliance for Children’s Rights—and the Scottish Human Rights Commission.

I urge members to support the amendments in my name in this group, which will ensure that all children are adequately protected under UNCRC requirements, regardless of whether public services are carried out by a public authority or a private company.

I move amendment 52.

The Convener

I call the minister to speak to amendment 9 and the other amendments in the group.

Maree Todd

The Scottish Government is committed to ensuring that the bill provides the highest level of protection for children’s rights that is possible within the powers of the Parliament. I listened carefully to the evidence at stage 1 and I agree with the committee’s recommendation that the duty in section 6 should be strengthened. It has always been the Scottish Government’s intention that the bill will ensure direct accountability for children’s rights in relation to all functions of a public nature.

An area that the Scottish Government looked at again relates to circumstances in which functions are being undertaken by a person pursuant to a contract or other arrangement, such as a grant, with a public authority. To put it simply, there is concern that children’s rights will not be adequately protected when public authorities contract out. That has been described as a weakness of the equivalent provision under the Human Rights Act 1998; many people consider that the courts have taken too restrictive an approach in their construction of the term

“functions of a public nature”.

It is not the Scottish Government’s intention that a similar approach should be adopted in the bill. Amendment 9 makes absolutely clear that, to the extent that a person is undertaking a function pursuant to

“a contract or other arrangement with a public authority”,

the person is caught by the duty in section 6 not to act incompatibly with the UNCRC requirements. Therefore, anyone who undertakes functions under a contract or other arrangement, such as a grant, with a public authority will be obliged to comply with the duty in section 6(1) and will be directly responsible and accountable for ensuring that their actions are not incompatible with the UNCRC requirements.

An important point is that that does not mean that the obligations of core public authorities will be extinguished. Children will still be able to bring claims against core public authorities; they will also be able to enforce their rights directly against providers that undertake public functions.

Although this is ultimately a matter for the courts to decide as the jurisprudence develops, examples of functions that we anticipate will be caught by amendment 9 include publicly funded early learning and childcare and publicly funded provision at independent and grant-aided schools.

I welcome the opportunity that Mary Fee’s amendments give me to further explain the Scottish Government’s ambition. The definition of a public authority under section 6(3) is intentionally wide. It is modelled on the approach in the Human Rights Act 1998 and will apply to every public authority and function of a public nature, to the maximum extent that is permitted by the powers of this Parliament. Ensuring that public authorities that provide care for children are required to comply with requirements in relation to children’s rights is already achieved by the existing definition of “public authority”. Amendment 52 would risk introducing uncertainty in relation to functions that are not about the care of children, which could have the consequence of narrowing the public authorities to which the compatibility duty in section 6 would apply. I do not think that that is the intention behind amendment 52.

My understanding of amendments 9A and 9B is that they seek to apply the compatibility duty to certain functions that would otherwise be considered to be private in nature. It is the case in Scotland, as in many other countries, that provision of services to children and young people can be undertaken by public authorities and by the private sector. It is the intention of the Scottish Government that children’s rights should be fully respected, protected and fulfilled in Scotland, and it is my view that section 6, as amended by amendment 9, will deliver on that.

The obligations under the UNCRC, as with other international obligations, rest on the state. It is through public authorities and public functions that actions of the state are undertaken, which is why it is appropriate to place obligations directly on public authorities requiring compliance with human rights, in this case children’s rights under the UNCRC. That does not mean, however, that business and the private and third sectors do not have an important role to play in the fulfilment of children’s rights in practice. Nor does it mean that there is no responsibility on the part of the private sector to ensure that rights are respected and protected.

Children’s rights can be, and are, protected in a number of different ways, for example through the criminal law, child protection legislation and equalities legislation and under the regulations that might apply in different sectors. In line with the UN’s “Guiding Principles on Business and Human Rights”, the Scottish Government will continue to work with those in the private sector to ensure that children’s rights are fully respected, protected and fulfilled. If there are gaps in policy and regulation that require to be filled to ensure that children’s rights under the UNCRC are protected, the Scottish ministers may be subject to challenge in the courts. Where the courts deem that further action to protect children’s rights is necessary, it will be incumbent on the Scottish Government to take appropriate action.

I understand that the policy intention behind amendments 9A and 9B is to expand the definition of public functions even further so that the requirement to comply with children’s rights would fall on parts of the private sector directly where the core purpose of a body is the provision of services that fulfil children’s rights under the UNCRC. However, I do not believe that that would be the effect of amendment 9B. Amendment 9B would add to what amendment 9 says and would, in my view, narrow its effect so that only contracts or arrangements that related to the types of services mentioned in amendment 9B would be captured. It is my intention that amendment 9 should have wide application and that any provider undertaking functions with public funds as a consequence of contracts and other arrangements should be required to comply with children’s rights. I am concerned that amendment 9B would put that at risk.

There are important questions that the committee has not considered in relation to any proposed extension of the compatibility duty to what would otherwise be wholly private functions. That would be a significant expansion of the bill’s scope and one on which, through the Scottish Government’s consultation and the committee’s stage 1 evidence, private bodies have not been invited directly to share their views. I am also cautious about taking an approach that would seek to frame the realisation of children’s rights as the responsibility of only certain services. Children’s rights must be protected, respected and fulfilled in all areas of children’s lives, and I believe that the bill already delivers on the Scottish Government’s intent on that in Scotland.

My view is that amendments 9A and 9B should be rejected for the reasons that I have set out. However, it is, of course, my intention that the bill should put in place the strongest framework possible for the realisation of children’s rights. I am aware that stakeholders such as Together and the Scottish Human Rights Commission are supportive of the Scottish Government giving these issues further consideration, which I am happy to continue to do. I have asked my officials to continue to engage with those stakeholders and others on those questions.

As I have said, I believe that the bill will put in place a strong framework that will ensure the realisation of children’s rights in practice in all circumstances and that amendment 9 will strengthen that framework. Where additional measures might be required to ensure that children’s rights are protected, the bill will ensure that ministers will be required to take action or potentially face challenge through the courts if they do not.

It is my view that amendments 9A and 9B should be rejected at this stage. As I outlined, I will continue to engage with relevant stakeholders and members, should they wish it, on the questions that this further debate has raised.

Alex Cole-Hamilton

I will speak in favour of Mary Fee’s basket of amendments, which I think are an improvement on the Government’s efforts for section 6 and an elegant solution to the challenge that has been given to us by stakeholders in the sector about the limitations of the bill as drafted. We have to recognise that the public purse is spent beyond public authorities and providers that deliver public services. A huge range of private sector companies and charities that the bill should also cover perform functions in the name of the state with public funding.

I disagree with the minister’s assessment of the shortcomings—as she sees them—of the amendments, because the amendments have been universally endorsed by the sector, not least by the Children and Young People’s Commissioner Scotland. For that reason, I am happy to support Mary Fee’s amendments.

Mary Fee

I welcome the supportive comments from Alex Cole-Hamilton. I also note the minister’s comments. However, my amendments reflect the views and concerns of stakeholders that we heard throughout our evidence sessions, and I believe that the amendments are an important addition to the bill that will give it considerable strength. That being the case, I press amendment 52.

The Convener

The question is, that amendment 52 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Cole-Hamilton, Alex (Edinburgh Western) (LD)
Fee, Mary (West Scotland) (Lab)
Harris, Alison (Central Scotland) (Con)
Stewart, Alexander (Mid Scotland and Fife) (Con)

Against

FitzPatrick, Joe (Dundee City West) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)

The Convener

The result of the division is: For 4, Against 3, Abstentions 0.

Amendment 52 agreed to.

Amendment 9 moved—[Maree Todd].

Amendment 9A moved—[Mary Fee].

The Convener

The question is, that amendment 9A be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Cole-Hamilton, Alex (Edinburgh Western) (LD)
Fee, Mary (West Scotland) (Lab)
Harris, Alison (Central Scotland) (Con)
Stewart, Alexander (Mid Scotland and Fife) (Con)

Against

FitzPatrick, Joe (Dundee City West) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)

The Convener

The result of the division is: For 4, Against 3, Abstentions 0.

Amendment 9A agreed to.

Amendment 9B moved—[Mary Fee].

The Convener

The question is, that amendment 9B be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Cole-Hamilton, Alex (Edinburgh Western) (LD)
Fee, Mary (West Scotland) (Lab)
Harris, Alison (Central Scotland) (Con)
Stewart, Alexander (Mid Scotland and Fife) (Con)

Against

FitzPatrick, Joe (Dundee City West) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)

The Convener

The result of the division is: For 4, Against 3, Abstentions 0.

Amendment 9B agreed to.

Amendment 9, as amended, agreed to.

Section 6, as amended, agreed to.

After section 6

The Convener

Amendment 53, in the name of Mary Fee, is in a group on its own.

Mary Fee

Amendment 53 is based on a number of discussions that I have had with a variety of organisations, including Together and Families Outside. I lodged it as a probing amendment, and I am keen to work with the Government, ahead of stage 3, to produce guidance in order to ensure that all public authorities can collaborate within the same set of guidelines. Giving the Scottish ministers the power to issue guidance to public authorities would enable them to be provided with the tools that they will need to meet UNCRC requirements, and the public authorities would be obligated to follow those.

There is concern among organisations such as Together, Families Outside and the Scottish Human Rights Commission that an absence of set guidance could lead to the UNCRC’s not being incorporated by all public authorities. Showing support for amendment 53 would lead to greater clarity for public authorities and would make the bill stronger through its ensuring greater accountability for public authorities, thus making children’s rights more accessible.

I move amendment 53.

Maree Todd

I welcome amendment 53, and I am supportive of the principle of providing clarity about the guidance and other materials that are to be provided by the Scottish Government in support of implementation. My officials are already engaged with a range of public authorities and stakeholders on materials that will be required to support public authorities to realise children’s rights in practice. As is explained in the policy memorandum, it has always been the intention that a range of guidance and materials will be developed in partnership to support the effective implementation of children’s rights.

I am, however, concerned that amendment 53 as drafted would introduce uncertainty about the responsibilities of public authorities. The requirement under section 6 not to act incompatibly with the UNCRC requirements is clear. Each public authority will require to consider what steps it needs to take in order to fulfil that duty. The final arbiter in any case will, of course, be the courts.

Although it is intended that a range of guidance and other support will be provided to public authorities, that cannot replace the responsibility that will rest on all public authorities to ensure that they comply with children’s rights. Guidance is not a substitute for considering the rights of children in all circumstances or for public authorities being proactive in their consideration of what that means for the delivery of services to children and young people. Therefore, I do not consider that it is appropriate or necessary to require that public authorities should have regard to guidance that is issued by ministers.

Nevertheless, I am supportive of making it clear in the bill that guidance and other supportive materials can be provided by the Scottish Government, in partnership with public authorities and others, in support of the implementation of the bill. Therefore, I urge Mary Fee not to press amendment 53, in order to allow me to explore a suitable alternative to bring before the Parliament at stage 3.

The Convener

Thank you, minister. I invite Mary Fee to wind up and to press or withdraw amendment 53.

Mary Fee

I welcome the minister’s comments, and I am encouraged by the work that is being done by the Government to ensure that, when the bill is enacted, there will be adequate guidance and instruction. Given those comments, I am happy to work with the Government ahead of stage 3 to ensure that there will be guidance that can be followed by everyone. I will not press amendment 53.

Amendment 53, by agreement, withdrawn.

Section 7—Proceedings for unlawful acts

The Convener

Amendment 10, in the name of Alexander Stewart, is grouped with amendments 11 to 15 and 18.

Alexander Stewart

Amendment 10 would provide that the Scottish ministers must make regulations under section 7(5) if they consider such regulations to be necessary. Section 7(5) provides that the Scottish ministers may do so

“if they consider it necessary to ensure that a particular tribunal can provide an appropriate remedy”.

If the Scottish ministers consider it necessary for regulations to be laid in Parliament, the matter should not be one of ministerial discretion. The regulations’ necessity implies that it should be mandatory for ministers to make those regulations, and the amendment seeks to clarify section 7 accordingly.

Amendment 11 would require the Scottish ministers to consult on the regulations before laying them under section 7(5). As I mentioned on a similar point regarding section 3, consultation is an important aspect of law making. It is essential in consideration of amendments that might add to the relief or remedies that a tribunal can grant or the grounds for such remedies or orders that a tribunal could specify or make. Amendment 11 would ensure that the Scottish ministers gather a full range of views before making regulations under section 7.

Amendment 12 would delete subsection (9) to pave the way for amendment 13. In their evidence to the Equalities and Human Rights Committee, the Law Society of Scotland and the Faculty of Advocates highlighted practical issues around the operation of section 7, particularly with regard to subsection (9), which provides for the disregard of any time period before a person reaches the age of 18 in the calculation of time limits within which an action may be brought under that section. At the extreme, that could involve litigation almost two decades later, when the issue in question might no longer be relevant. Early action allows for effective remedy in individual cases and for children more generally. Section 7(10) specifies the power for a court or tribunal to disapply the one-year time period when it is equitable to do so. That case-by-case approach is preferable to a situation in which the time before a person reached the age of 18 could be disregarded for the purposes of bringing action. If agreed to, amendment 12 would require further amendment to section 7(10).

Amendment 13 would provide that, when considering under subsection (1) whether it is equitable to allow the person to bring the action, the court or tribunal must take account of any delay in the person becoming aware of the act and the person’s age at the date of the act. Amendment 13 is consequential on amendment 12, which, as I have said, deletes section 7(9). It allows for factors such as delay in becoming aware of a breach of the convention and the age of the person at the date to be taken into account when the court is considering whether to allow the action.

Amendment 14 would amend section 8 and ensure that any relief or remedy granted by the court or tribunal must be effective as well as appropriate. Effectiveness of the remedy to be granted by the court is a key component in ensuring that the statute is working for the benefit of children in Scotland. Article 13 of the European convention on human rights provides the right to an effective remedy.

However, article 13 is excluded from the terms of schedule 1 to the Human Rights Act 1998, an omission that many commentators have criticised. It is important to ensure that the remedies granted under the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill will be effective. Indeed, emphasising the requirement for relief or remedy to be effective could militate against purely academic points being raised. I agree with the view that was expressed by the Law Society of Scotland and in the Equalities and Human Rights Committee’s stage 1 report, that section 8 should be amended in that way.

Amendment 15 seeks to add to section 8 a requirement of courts and tribunals to give a child who might be affected an opportunity to express a view and have

“regard to such views as the child may express”.

The Equalities and Human Rights Committee asked the Scottish Government to amend the bill to require courts and tribunals to ask for the child’s view on what would be considered an effective remedy in those cases.

Like the committee, I am aware of precedent in other legislation, such as section 11 of the Children (Scotland) Act 1995, as amended by the Children (Scotland) Act 2020, when it comes into force.

I believe that requiring courts and tribunals to ask for children’s views in considering what would be effective remedies in their cases is important in that context, because a child might want something more than damages. The amendment ensures that the court or tribunal must take into account the child’s view of what would be considered an “effective” remedy.

It is in keeping with current child law in Scotland and provisions in the convention that the views of the child should be taken into account when a court or tribunal is considering whether to make an order concerning the child, and amendment 15 would achieve that objective.

I move amendment 10.

Maree Todd

Section 7 makes provision for proceedings in relation to acts of public authorities that are incompatible with the UNCRC requirements. Section 7(5) provides a power for the Scottish ministers to add to the remedies or relief of a particular tribunal if they think it necessary to do so, to ensure that the tribunal can provide an appropriate remedy. Ministers can also use that power to add to the grounds on which the tribunal may grant a remedy or the orders that a tribunal may make.

The power is intended to ensure that the Scottish ministers can make provision for additional remedies quickly and without having to resort to primary legislation when, in a particular circumstance, it has been identified that the powers of a tribunal are not sufficient to provide a remedy for a breach of children’s rights.

I welcome amendment 10 and I am supportive of it in principle. Of course, the section 7(5) power is subject to parliamentary scrutiny through the affirmative procedure, and any draft regulations that are laid before the Parliament could be rejected by the Parliament. To reflect the fact that the making of regulations under section 7(5) cannot be guaranteed by the Scottish ministers, I offer to work with Alexander Stewart to lodge an amendment at stage 3 that would adjust that provision, so that the duty on ministers would instead be to lay draft regulations before the Parliament in the circumstances that are set out in section 7(5).

I also welcome amendment 11, which reflects the Government’s commitment to open and transparent decision making. It might be necessary to make minor adjustments to the wording of the provision at stage 3 for the purpose of consistency with the rest of the bill, but I am happy to work with Alexander Stewart on that.

I ask the committee to support amendments 10 and 11.

I firmly oppose amendments 12 and 13, which would, if agreed to, significantly reduce the protection that the bill provides for children’s rights. If Mr Stewart is a champion of children’s rights, he will not move those amendments.

It is widely recognised that children and young people face additional barriers in realising their rights and in seeking access to justice. By nature of their age and vulnerability, it is likely to be more difficult for children and young people to have the understanding, capacity and means to raise legal proceedings. That is particularly true of children with additional support needs and those who experience violence, abuse and trauma.

The provision in relation to time limits that section 7(9) puts in place will ensure that violations of children’s rights cannot be dismissed simply because of the passage of time. The additional hurdles that amendments 12 and 13 would put in place are not, in my view, appropriate. No child should be required to prove to a court that, by virtue of being a child, they face additional barriers to raising legal proceedings to enforce their rights. The Deputy First Minister has spoken of the culture change that is required among public authorities if we are to realise our ambition that children’s rights are fully protected, respected and fulfilled, and the provision in section 7 on time limits is part of that culture change.

Children and young people spend significant parts of their lives under the care of, and in receipt of, services from public authorities, so public authorities must be ready to listen and learn from the children and young people whom they serve. That includes recognising the significant power imbalance that exists between children and public authorities and ensuring that children are fully supported to realise their rights throughout their childhood.

Section 7 will not prevent claims from being raised quickly when it is possible and in the interests of children and young people for that to happen. However, it will ensure that children and young people are given every opportunity to hold public authorities to account, and that should be supported by all members who support children’s rights.

I support amendment 14, which would ensure that there is transparency in the courts’ consideration of effective remedies. I support the policy intention behind amendment 15. However, the Scottish Government has lodged amendment 18, which is intended to achieve the same result but is clearer. Both amendments seek to ensure that, when a court is considering the effectiveness of remedies, it has the child’s views, in line with article 12 of the UNCRC.

In my view, amendment 18 is stronger than amendment 15. It will ensure not only that children are afforded the “opportunity to express” their views but that they should be able to do so in the manner that they prefer or that is suitable for them. It also makes it clear, in line with article 12, that a child should

“be presumed to be capable of forming a view.”

The Convener

No other member has indicated that they wish to speak, so I ask Alexander Stewart to wind up and say whether he wishes to press or withdraw amendment 10.

Alexander Stewart

I am encouraged by the minister’s comments with reference to section 8, and I look forward to working with her on some of the amendments as we progress with the bill. I am happy to press amendment 10.

Amendment 10 agreed to.

Amendment 11 moved—[Alexander Stewart]—and agreed to.

Amendment 12 moved—[Alexander Stewart].

The Convener

The question is, that amendment 12 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Harris, Alison (Central Scotland) (Con)
Stewart, Alexander (Mid Scotland and Fife) (Con)

Against

Cole-Hamilton, Alex (Edinburgh Western) (LD)
Fee, Mary (West Scotland) (Lab)
FitzPatrick, Joe (Dundee City West) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)

The Convener

The result of the division is: For 2, Against 5, Abstentions 0.

Amendment 12 disagreed to.

Amendment 13 moved—[Alexander Stewart].

The Convener

The question is, that amendment 13 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Harris, Alison (Central Scotland) (Con)
Stewart, Alexander (Mid Scotland and Fife) (Con)

Against

Cole-Hamilton, Alex (Edinburgh Western) (LD)
Fee, Mary (West Scotland) (Lab)
FitzPatrick, Joe (Dundee City West) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)

The Convener

The result of the division is: For 2, Against 5, Abstentions 0.

Amendment 13 disagreed to.

Section 7, as amended, agreed to.

Section 8—Judicial remedies

Amendment 14 moved—[Alexander Stewart]—and agreed to.

Amendment 15 not moved.

The Convener

Amendment 16, in the name of the cabinet secretary, is grouped with amendments 17, 19, 27, 28, 39, 40, 42 and 43.

Maree Todd

We recognise the additional barriers that children and young people face and the need to ensure that justice is accessible to them. As such, the bill provides the Children and Young People’s Commissioner Scotland with the power to bring proceedings in the public interest and to intervene in proceedings in which a person claims that a public authority has acted, or proposes to act, in a way that is incompatible with the UNCRC requirements. It also requires the courts to notify the children’s commissioner when a court is considering making

“a strike down declarator or incompatibility declarator”

in relation to legislation, or when a compatibility question arises in any proceedings before a court or tribunal.

We have noted the written evidence of the Scottish Human Rights Commission, in which it seeks similar powers to those of the children’s commissioner to raise or intervene in proceedings. I consider that to be in line with our maximalist approach to incorporation.

Amendment 19 will modify the Scottish Commission for Human Rights Act 2006 to disapply the existing prohibition on assisting in claims or legal proceedings, but only in relation to proceedings under the bill. The approach will bring the SHRC into the bill’s framework in the same way as the children’s commissioner, providing parity of esteem.

Amendments 39, 40, 42 and 43 will mean that the bill makes the same provision in relation to the SHRC as it does for the children’s commissioner and will further support children and young people to fully realise their rights and access justice.

Amendments 16 and 17 will amend section 8(5) so that no award of damages is to be made to the SHRC.

Amendments 27 and 28 will require the Scottish ministers to consult the SHRC when publishing or amending the children’s rights scheme and when publishing a report under section 13.

The amendments will strengthen the SHRC’s existing functions by providing the power to raise litigation in the public interest and by placing requirements on courts to notify the SHRC of certain proceedings. That will enable the SHRC to bring cases to court without the need for individual children and young people or their families to take on the full responsibility and strain of bringing challenging cases to court on their own. The amendments will also enable the SHRC to intervene in certain proceedings, where it is appropriate for it to do so.

Our approach recognises the SHRC’s status as one of Scotland’s national human rights institutions and is in line with the intention to support children and young people to assert and defend their rights and the rights of others.

I move amendment 16.

Amendment 16 agreed to.

Amendment 17 moved—[Maree Todd]—and agreed to.

Section 8, as amended, agreed to.

After section 8

Amendment 18 moved—[Maree Todd]—and agreed to.

Sections 9 and 10 agreed to.

After section 10

Amendment 19 moved—[Maree Todd]—and agreed to.

Section 11—Children’s Rights Scheme

The Convener

Amendment 20, in the name of the cabinet secretary, is grouped with amendments 21, 22, 54 to 56, 23 to 26, 57, 58 and 61.

Maree Todd

As the Deputy First Minister set out during the stage 1 debate, the Scottish Government is happy for the scheme to require ministers to include and report on the topics that are listed in section 11(3). On that basis, I urge the committee to support Alexander Stewart’s amendment 22, which would make the list of matters that are listed in section 11(3) mandatory parts of the scheme. Had the member not lodged such an amendment, I would have done so.

As the Deputy First Minister also set out during the stage 1 debate, the Government intends to strengthen the scheme by requiring it to include arrangements to promote a child-friendly complaints mechanism and to ensure effective access to justice for children and young people.

The list at section 11(3) is not intended to set out every action that ministers will take in fulfilment of the compatibility duty in section 6; instead, it is intended to highlight key strategic priorities that should always be included. The scheme will be consulted on and revised annually, so there will be an annual opportunity for more granular priorities, which are likely to change over time, to be recognised.

Ensuring that children and young people can realise their rights and access justice is vital not only to the success of the bill but to driving the desired culture change in Scotland. Amendment 24 will require ministers to set out in the scheme arrangements to ensure effective access to justice for children. That will include matters such as legal aid but, importantly, it is wider than that. There is already a requirement in section 11(3)(a) for ministers to set out arrangements that will ensure that children can participate in decisions that affect them. When children require access to independent advocacy to participate fully in decision making, that is the type of measure that can be reported on under that requirement. I consider that the provision in section 11(3)(a) is broader, so that other matters relevant to children’s participation are prioritised. For those reasons, I urge members to support amendment 24 and I ask Mary Fee not to move amendments 54 and 55.

We know that the provision of accessible complaints mechanisms is an important part of realising children’s rights in practice. For many children and young people, complaints mechanisms are likely to be the route by which children’s rights issues can be aired without recourse to the courts or tribunals system. In recognition of that, I believe that it is important that the action that the Scottish ministers take to promote accessible complaints mechanisms should form part of the children’s rights scheme. Amendment 23 will ensure that that is included in the requirements for the scheme.

Through the scheme, the Government intends to build in greater accountability and transparency in relation to the proactive realisation of children’s rights. To support that aim, amendment 25 will require ministers to address arrangements for the publication of child rights and wellbeing impact assessments—CRWIAs—in the scheme so that they can be consulted on and reviewed on an annual basis.

I have listened carefully to the evidence given to the committee on suggested additional requirements for inclusion in the scheme, including a specific provision about protected characteristics and children who are in situations of vulnerability. Although I am of the view that ministers will already be required, as a consequence of the compatibility duty in section 6, to demonstrate how they ensure the rights of all children and young people without discrimination, I have listened carefully to the views of those who represent the views of children, who are often the least heard. They have emphasised that specific requirements to ensure that separate rights and needs are systematically prioritised matter to them.

I therefore welcome amendments 56 and 57, and I am supportive of them in principle. I understand the importance that those amendments have to Together and other stakeholders who represent, in particular, children with disabilities and care-experienced children and young people. I also recognise the importance of ensuring that children with protected characteristics and in situations of vulnerability should be specifically recognised within the scheme.

I have asked my officials to give the drafting of those two amendments careful consideration and to work in partnership with Mary Fee and members of Together to ensure that they achieve their intended purpose. It is possible that I will seek to introduce adjustments at stage 3 to ensure that the provisions work as well as they can.

I do not consider that amendment 61 is necessary, because it duplicates the definition provided by amendment 57, and I urge Mary Fee not to move it.

I have given careful consideration to the necessity of amendment 58. Section 13 requires the Scottish ministers to review and report on the scheme. Therefore, I do not think that it is strictly necessary to repeat in section 13 the matters that must be included in the scheme and that are set out in section 11. The other matters to be included in the scheme are not repeated in section 13. I believe that, if amendment 56 is supported, the policy intention that I understand Mary Fee is seeking to deliver through amendment 58—that is, that those matters will be included in the scheme and will become part of the annual review and the reporting cycle for the scheme—will be delivered. I therefore suggest that amendment 58 is not necessary.

My intention is that the scheme will function as a transparent mechanism for how children’s rights are embedded by the Scottish ministers in practice and that it will provide a model that public bodies can follow.

The UNCRC is, of course, not the ceiling of our ambitions. It is my intention that, through the scheme, ministers should set out arrangements for how they progressively realise the rights of children and young people, in line with international obligations. Amendment 21 builds on the current requirements of the Children and Young People (Scotland) Act 2014 and builds proactive consideration of what steps ministers can take to give better and further effect to the rights of children into the scheme requirements. In that way, we will ensure that the Scottish ministers continue to fulfil their role as leaders in children’s rights by seeking to progressively realise those rights.

I do not consider that amendment 26 is necessary. It is intended that the first children’s rights scheme will be in place on commencement of the eventual act.

I encourage members to support amendments 21 to 25 and 56 and 57.

I hope that Alexander Stewart accepts that his amendment 26 is not now needed and that he will not move it. Should he do so, I hope that members will recognise our intent to make the scheme ahead of commencement, and that they will vote against that amendment. Likewise, I hope that Mary Fee recognises that the acceptance of amendment 57 makes amendment 58 obsolete, and that she will not move amendment 58. The same applies to amendment 61. While it would be the Government’s preference for amendment 58 not to be agreed to, should members be minded to support it, I am sure that we will be able to accommodate it—although we would give that further consideration ahead of stage 3.

I also hope that Mary Fee will not move amendments 54 and 55, on the basis that the intent behind both of them is covered—that of amendment 54 by the existing provision in section 11 and that of amendment 55 by the Government’s amendment 24. Should amendments 54 and 55 be moved, I would encourage members not to support them.

I move amendment 20.

Alexander Stewart

Amendment 22 seeks to amend section 11(3) to ensure that the children’s rights scheme requires to include certain obligations on the Scottish ministers regarding the rights of children. Section 11 requires the Scottish ministers to make a children’s rights scheme

“setting out the arrangements ... to ensure that they comply with the duty under section 6(1).”

Section 11(3) provides that

“The Scheme may ... include arrangements for the Scottish Ministers to”,

for example,

“ensure that children are able to participate in making decisions that affect them,”

and

“raise awareness of and promote the rights of children”.

The Equalities and Human Rights Committee noted that many responses to the call for views and oral evidence suggested that the language in section 11 needs to be strengthened. I acknowledge the Government’s response to the committee accepting that the wording in section 11(3) will be changed from “may” to “must”. I and the Law Society of Scotland agree with that proposal and amendment 22 would achieve that objective.

Amendment 26 ensures that there is a time limit on the publication of the first report on the first children’s rights scheme. In the view of the Law Society of Scotland, it is important for the children’s rights scheme to be in force quickly and for there to be adequate parliamentary scrutiny of its operation. Under section 11(4) the first scheme must specify the date on which the first report is to be published. I note the minister’s comment on that and am happy to incorporate that as we move forward.

Mary Fee

I listened carefully to the minister’s comments and, in the light of them, I will not move my amendments 54, 55, 58 and 61. However, I will speak to the amendments because I wish to speak to the intention behind them.

Amendment 54 sought to strengthen the bill by ensuring that the children’s rights scheme gave greater control to children by giving them

“access to independent advocacy services”.

That would mean that children would always have access to impartial information to help them when they were making decisions that affected them, which would add an extra level of protection for children.

Amendment 55 sought to ensure that children would have access to legal aid as part of the children’s rights scheme. That would have strengthened the bill, as it would have allowed children to use their rights, regardless of their financial circumstances. That would help to make the bill inclusive of all children in Scotland.

Amendment 56 would ensure that all children had their rights respected, protected and fulfilled. Children who have one or more protected characteristics or who are in a situation of vulnerability might be less likely to have their rights respected, protected and fulfilled, due to discrimination. Putting that amendment in the bill would ensure that those children’s rights are respected as part of the scheme, give greater protection and make the bill stronger for vulnerable children.

Amendment 57 would give greater clarity to the bill by defining what is meant by protected characteristics. Using the characteristics listed in section 149(7) of the Equality Act 2010 means that there would be little room for interpretation. That would be an important change, because it is crucial that all children feel properly supported. Using an established list from the 2010 act would give reassurance that no characteristics could be ignored and that the understanding of the incorporation of the UNCRC is rooted in established equalities legislation. The bill must guarantee that all children in Scotland are adequately protected.

Amendment 58 would strengthen the bill by ensuring that the Scottish ministers must include in their reports a summary of actions that they have taken to ensure

“that children who have one or more protected characteristics or are in a situation of vulnerability have their rights respected, protected and fulfilled”.

That would mean that greater accountability for children’s rights would be required from Scottish ministers, thus making the bill stronger for the children whom it seeks to protect.

Amendment 61 seeks to provide greater clarity to the bill. It follows amendment 57 in my name by ensuring that any mention of protected characteristics throughout the bill would be defined by the Equality Act 2010. Along with amendment 57, it would provide in the bill a cohesive understanding of the definition of protected characteristics, leaving no room for interpretation.

The Convener

As no other members have indicated that they wish to speak, I ask the minister to wind up.

Maree Todd

The children’s rights scheme is an important part of the framework that the bill puts in place. It will ensure that there is regular consideration and scrutiny of the steps that ministers must take to ensure that children’s rights are proactively and progressively realised in practice. As I said, there is a balance to be struck between including the appropriate level of specificity in the bill and the need to ensure that the bill puts in place a framework that can endure into the future and is responsive to the priorities of the day.

I am grateful for the spirit that colleagues on the committee have expressed. I am keen to work further with you before stage 3 to ensure that section 11 delivers on our ambition.

Amendment 20 agreed to.

Amendment 21 moved—[Maree Todd]—and agreed to.

Amendment 22 moved—[Alexander Stewart]—and agreed to.

Amendments 54 and 55 not moved.

Amendment 56 moved—[Mary Fee]—and agreed to.

Amendments 23 to 25 moved—[Maree Todd]—and agreed to.

Amendment 26 not moved.

Amendment 57 moved—[Mary Fee]—and agreed to.

Section 11, as amended, agreed to.

The Convener

That seems like a good place to stop for a quick comfort break. I suspend the meeting for about five minutes.

Section 12—Procedure for making, amending and remaking the Scheme

Amendment 27 moved—[Maree Todd]—and agreed to.

Section 12, as amended, agreed to.

Section 13—Reviewing and reporting on the Scheme

Amendment 58 not moved.

Amendment 28 moved—[Maree Todd]—and agreed to.

The Convener

Amendment 47, in the name of Gillian Martin, is grouped with amendments 49, 5 and 50.

Gillian Martin

Throughout the committee’s many outreach sessions, I was struck by how many young people said that their rights had not been properly communicated to them at crucial points in their lives. In particular, the care-experienced young people to whom we spoke were firm in their calls for all policies and decisions relating to children to be available in child-friendly language. Therefore, throughout our formal evidence sessions, I pursued that line of inquiry, and I was convinced of the need for all reports relating to children and young people to be made available to them in a language that they could understand.

In response to questions from me in his evidence to the Equalities and Human Rights Committee at stage 1, the Deputy First Minister agreed on the importance of ensuring that the requirements in the bill would

“be translated into a meaningful message to children and young people”—[Official Report, Equalities and Human Rights Committee, 3 December 2020; c 17.]

that could be easily understood. They need to know what their rights are and how to pursue them. They will have a better chance in that regard if the communications on those rights are appropriate for their age.

The achievement of that ambition is fundamental to ensuring that children and young people are empowered to understand their rights. Confirming and enabling that understanding should be central to how public authorities build a rights-respecting culture that centres on the rights of the child.

As introduced, section 13 provides that ministers must review and report on the operation of the children’s rights scheme annually; it also requires that ministers must prepare and publish a version of the report that they

“consider will be understood by children”.

Amendment 47 will strengthen that provision to require that ministers produce a version that “children can understand”, which is a much stronger requirement. Amendment 49 will require that a report published under section 15 by listed public authorities of the actions that they have taken

“for the purpose of ensuring compliance with the duty under section 6(1)”

is

“accompanied by a version of the report that children can understand”.

Amendment 50 will place the same requirement on reports published by the Scottish ministers under section 23, following

“a strike down or an incompatibility declarator”.

I know that Alison Harris also wishes the bill to be strengthened in that area. However, I consider that my amendment 50 is stronger, as it says that reports must be produced in a version “that children can understand”, and the phrasing is more consistent with my amendments 47 and 49. Alison Harris’s amendment 5 has a similar objective, but it uses the phrasing “that ... Ministers consider”, which I do not believe is as definitive or robust.

I therefore ask the committee not to support amendment 5. I hope that Alison Harris and the rest of my colleagues understand why my amendment is stronger and more in keeping with our shared objective of communicating appropriately with children on their rights. I ask the committee to support amendments 47, 49 and 50 in my name.

I move amendment 47.

Alison Harris

Although I listened to what Gillian Martin said, I feel that my amendment 5 is the most child-friendly focused option, because it would require the Scottish ministers to publish a report that children could understand. It is only right that such a report, given that it will be about the steps that are being taken to address a breach of children’s rights, is primarily one that children can and do understand. My amendment would ensure that only one report was prepared, whereas my understanding is that Gillian Martin’s amendment would require two reports: an adult report and a child-friendly report. I believe, therefore, that my amendment is more appropriate.

Maree Todd

I welcome and support amendments 47 and 49 in the name of Gillian Martin, which would ensure that reports on the children’s rights scheme under section 13 and reports under section 15 on action that is taken by public authorities

“for the purpose of ensuring compliance with the duty under section 6(1)”

will require to be communicated in a way “that children can understand.”

I also welcome and support amendment 50, which will ensure that reports that are published by the Scottish ministers under section 23 following

“a strike down ... or an incompatibility declarator”

are also communicated in a way “that children can understand.”

Although I support the intention behind amendment 5, I consider that amendment 50, lodged by Gillian Martin, is clearer and more consistent with the phrasing of amendments 47 and 49. I therefore ask the committee to support amendments 47, 49 and 50.

The Convener

I ask Gillian Martin to wind up and to press or withdraw amendment 47.

Gillian Martin

I note that children of a range of ages might want to access reports, and, although child-friendly language is appropriate for young children, it is important that the report is also available in a language that older children and young people can understand. My main reasoning is that Alison Harris’s amendment 5 uses the phrase “that ... Ministers consider”. The approach in my amendment 50 is much stronger, as it compels ministers to ensure “that children can understand” the report, which is more objective and much stronger. I press amendment 47.

Amendment 47 agreed to.

Section 13, as amended, agreed to.

Section 14—Child rights and wellbeing impact assessments

The Convener

Amendment 29, in the name of the cabinet secretary, is grouped with amendments 30 to 33, 48 and 34. Members should note that amendment 32 pre-empts amendment 33; so, if amendment 32 is agreed to, I cannot call amendment 33.

Maree Todd

I am aware that concerns were raised with the committee regarding section 14(3) and the level of discretion that it affords to ministers in relation to decisions of a strategic nature for which a child rights and wellbeing impact assessment must be undertaken. Undertaking rigorous impact assessments at all levels of government and public administration will be an important part of how public authorities demonstrate their compliance with the compatibility duty in section 6 and how they respect, protect and fulfil children’s rights in practice.

The bill as introduced places a requirement on ministers to undertake a CRWIA in relation to such decisions of a strategic nature as they consider appropriate. Amendment 33 will strengthen that provision by removing the references to ministerial discretion and requiring ministers to set out the detail on the strategic decisions for which they will prepare and publish a CRWIA on the children’s rights scheme. That was always the policy intention.

As members will be aware, Alexander Stewart’s amendment 22, which I support, will adjust section 11(3) to make the list of matters to be included in the scheme mandatory. When combined with our amendments 29, 30 and 33, and with Mr Stewart’s amendment 31, which I also support, that will place a duty on ministers to publish the CRWIA prepared in relation to legislative provision or decisions of a strategic nature in accordance with the requirements and arrangements that are set out in the children’s rights scheme. The effect of those amendments will be to ensure on-going transparency and accountability in relation to how the Scottish ministers consider and make provision for children’s rights in their strategic decision making in practice.

Mr Stewart’s amendment 32 appears to have a similar aim to my amendment 33, but it does not make it as clear that when and how CRWIAs must be prepared and published must be in accordance with the arrangements in the scheme. I therefore ask him not to move that amendment and instead to support the Government’s amendment 33.

I assure the committee that the Government will continue to work with public authorities to encourage best practice in ensuring that their CRWIA processes are accessible, involve consultation with children and young people and are published in child-friendly formats, where appropriate.

As the Deputy First Minister said in his appearance before the committee, the impact of the Covid-19 pandemic has been felt acutely by children and young people, and it has disrupted their lives in previously unimaginable ways. This Government has ensured that children’s rights are at the heart of our Covid response. Throughout the pandemic, decisions have often needed to be taken at pace. However, we have sought to strike the important balance between the health and wellbeing of school and wider communities and the clear benefits that education and attending school bring. A suite of impact assessments, including a CRWIA, on school closures and their reopening in August have been published and are currently being updated to take into account variances with the current situation.

Members of the Covid-19 education recovery group, which includes a member of the Scottish Youth Parliament, have provided insight for that work. It has also been supported by discussions with the children’s commissioner, meetings between the Deputy First Minister and groups of learners in June, October and December 2020, and input from multiple stakeholders. That was further strengthened in November 2020 with the creation of the education recovery youth panel, which is comprised of 25 children and young people aged from nine to 18. The Deputy First Minister met the panel on 4 February 2021. It will continue to engage with ministers and the Covid-19 education recovery group throughout spring and summer 2021, helping to influence and shape our approach to education recovery.

By establishing a framework for children’s rights in Scotland, the bill is essential to our recovery and to the fairer, more equal society that the Government wants for Scotland beyond our Covid recovery.

Although I do not consider that amendment 48 is necessary, I am content for provision to be made in the bill that would require ministers to prepare child rights and wellbeing impact assessments in relation to decisions about schools closures in the context of the Covid pandemic. I have asked my officials to give the drafting of the amendment careful consideration. I consider that adjustment will be required at stage 3. However, I am supportive of it being accepted today.

I urge members to support my other amendments in this group, along with amendment 31 in Alexander Stewart’s name and amendment 48 in Rachael Hamilton’s name. I ask members not to support amendment 32, because I believe that Government amendment 33 offers a better solution.

I move amendment 29.

Alexander Stewart

I will speak to amendments 31 and 32, which would ensure that the Scottish ministers were under a direct obligation to prepare a child rights and wellbeing impact assessment in relation to all strategic decisions relating to the rights and wellbeing of children.

Section 14(3) obliges the Scottish ministers to

“prepare a child rights and wellbeing impact assessment in relation to such decisions of a strategic nature relating to the rights and wellbeing of children as they consider appropriate.”

In its stage 1 report, the Equalities and Human Rights Committee asked the Scottish Government to remove ministerial discretion at section 14(3) of the bill. If that was not removed, the committee wanted the Scottish Government to provide clear information about what decisions of a strategic nature would and would not be considered appropriate for a CRWIA to be carried out.

I agree with the committee and the Law Society of Scotland, which take the view that section 14(3) affords the Scottish ministers significant discretion regarding what is considered “appropriate” and therefore about which impact assessments to prepare.

I read the Government’s response to the stage 1 report, and I welcome the minister’s comments this morning about amendment 32. I will not move that amendment. However, I intend to move amendment 31.

The Convener

I call Rachael Hamilton to speak to amendment 48 and other amendments in the group.

Rachael Hamilton (Ettrick, Roxburgh and Berwickshire) (Con)

I thank the committee for giving me this opportunity to speak to my amendment.

Over the past year, due to Covid-19, children’s rights to education have been compromised by the closure of schools. To save lives and protect the national health service, the immediate closure of schools was unavoidable. However, the on-going pandemic and those actions have had a substantial impact on children’s rights, with learning interrupted. I believe that the impact was not properly assessed.

Parents, teachers and pupils across Scotland have patchy access to digital and physical resources, for example, and many struggle to access broadband. Furthermore, in worst-case scenarios, some children have found themselves in a vulnerable position by being at home all day instead of at school, where mental and physical wellbeing can be assessed.

Although the Government published a child rights and wellbeing impact assessment on some of the pandemic-related legislation that has been passed, it is important that assessments are done comprehensively and cover all law and policy that affects children.

It was highlighted in the committee’s 2018 report “Getting Rights Right: Human Rights and the Scottish Parliament” that the Government should amend its practice for all its bills. The report says:

“The Scottish Government, should, in conjunction with the Parliament, the Scottish Human Rights Commission, the Equalities and Human Rights Commission and the Children and Young People’s Commissioner Scotland, agree a template for an ‘impact and opportunity assessment’.”

That recommendation was made years ago. An impact assessment was carried out for the schools opening last August, but no assessment was done prior to that. I thank the children’s commissioner, Bruce Adamson, and the observatory of children’s human rights Scotland for their independent assessment, which highlights those issues.

It has become clear, through evidence that has been given to the committee that, as we incorporate the UNCRC into Scots law, we must seek to strengthen the duty on the Government to properly assess any decision making on school closures or disruption of education as a result of Covid. Where access to education is to be restricted, it should be the case that ministers must prepare a child rights and wellbeing impact assessment, to ensure that we do not see a rerun of last year’s issues or create the same exam result issues for next year’s cohort. Dr Tracy Kirk made that point.

Some children have been let down badly under the current circumstances. Amendment 48 seeks to address that. In short, it would underpin what is in place by placing a duty on ministers to properly prepare impact assessments in the context of UNCRC, thereby avoiding a situation arising in which the closure of schools compromised a child’s access to education, as outlined in article 28.

The Convener

As no other member has indicated that they wish to speak, I invite the minister to wind up.

Maree Todd

I will simply say that it is essential that child rights and wellbeing impact assessments are undertaken meaningfully and that they inform decision making across the public sector. The bill strikes the right balance by ensuring that there is direct accountability on ministers in relation to legislation and strategic decisions and by ensuring that the Government can continue to work with public authorities, so that best practice in relation to impact assessments is followed without reducing the assessments to a tick-box process.

I believe that the Government’s amendments, and the other amendments that I am supporting in this group, will strengthen the bill in the interests of children and young people. I am grateful to committee members for their support.

Amendment 29 agreed to.

Amendment 30 moved—[Maree Todd]—and agreed to.

Amendment 31 moved—[Alexander Stewart]—and agreed to.

Amendment 32 not moved.

Amendment 33 moved—[Maree Todd]—and agreed to.

Amendment 48 moved—[Rachael Hamilton]—and agreed to.

Amendment 34 moved—[Maree Todd]—and agreed to.

Section 14, as amended, agreed to.

Section 15—Reporting duty of listed authorities

The Convener

Amendment 35, in the name of the minister, is grouped with amendments 36, 37, 59 and 60.

Maree Todd

Section 15 places a requirement on listed authorities to prepare and publish reports on what they have done to comply with the duty in section 6(1) on a three-yearly basis. The purpose of that duty is to ensure that there is transparency and accountability for the actions and plans of those authorities whose services most directly affect children and young people.

In their evidence to this committee, some rights stakeholders called for the approach in the bill to be strengthened by requiring the section 15 duty on listed authorities to be not only retrospective in effect but proactive, requiring them to report on their planning for the next reporting period as well as what they had done in the previous period. As was set out in our response to the stage 1 report, the Scottish Government agreed with the committee’s recommendation and pledged to lodge an amendment to achieve that effect.

I consider that requiring listed authorities to set out and report on their plans for the next three-year period will help to promote a culture of everyday accountability for children’s rights. That is how public authorities would work in any case. As you will be aware, section 2 of the Children and Young People (Scotland) Act 2014 currently contains a duty on certain public authorities to report on steps taken to

“secure better or further effect within its areas of responsibility of the UNCRC requirements.”

The bill will repeal section 2 of the 2014 act in its entirety-—along with the rest of part 1 and schedule 1—and replace it with what is in section 15. Amendments 35 to 37 will amend section 15 to provide that, as well as reporting on what actions they have taken to comply with the duty in section 6(1), listed authorities will be required to report on what actions they have taken to secure better or further effect of the rights of children. The intention is that section 15 should also reflect the wider duty and intention underpinning the duties in section 2 of the 2014 act and ensure that consideration of the progressive realisation of children’s rights is at the heart of listed authorities’ actions and planning considerations.

Therefore, not only do Government amendments 35 to 37 fulfil the recommendation of this committee, but they go further and require listed authorities to set out and report on their actions to give better and further effect to the rights of children.

As the Government has done for the existing reporting duty under section 2 of the 2014 act, we will work in partnership with a range of public authorities in relation to the guidance that will be required to support them to fully realise children’s rights in practice.

I have sympathy with the intention behind amendments 59 and 60. However, in placing additional requirements on public authorities, we are mindful of the need to achieve the right balance and to avoid placing undue administrative burdens on public authorities. I consider that the intended effect of those amendments would be better achieved by effective guidance and partnership working between Government, relevant stakeholders and public authorities, and with children and young people. That is the way to ensure that the reports contain the right information, which is tailored to the circumstances of the authority in question. Where appropriate, that approach can deal with the matters about which the member is concerned.

I know that members want to do more in the bill to recognise and provide for the needs of children in what is reported, and I share that aspiration. For those reports to be meaningful, they must address a range of issues relating to children. However, Mary Fee’s amendments would prescribe in primary legislation some matters and not others, which would not necessarily serve the best interests of children.

I am keen to explore and consider those matters further, ahead of stage 3. I therefore ask Mary Fee not to move amendments 59 and 60, on the basis that I will consider ahead of stage 3 what might be possible in that space. If the amendments are moved, I encourage members not to support them, on the basis that I have outlined. I am not convinced that the suggested approach is helpful or workable, but I will work with what the committee decides.

I ask members to support amendments 35 to 37, and I ask Mary Fee not to move amendments 59 and 60.

I move amendment 35.

Mary Fee

Amendment 59 would strengthen the quality of the content of the bill by ensuring that listed authorities met the requirements regarding children who have one or more protected characteristics or who are in a situation of vulnerability, which would ensure that their rights were respected, protected and fulfilled. By making that a requirement for listed authorities, the bill would provide more protection for children in those groups and strengthen the obligation on the listed authorities to do all that they can to ensure that the rights of all children are respected, protected and fulfilled.

Amendment 60 would provide greater clarity to listed authorities when they used the bill. It would ensure that listed authorities actively work to meet the requirements that are set out in the amendment. Children will be better protected when listed authorities proactively promote complaints handling procedures and ensure that children have access to independent advocacy and legal aid. The amendment would make the bill stronger, as it would set out a more transparent approach to reporting.

The Convener

As no other member wishes to speak, I ask the minister to wind up.

Maree Todd

The Scottish Government amendments in the group will ensure that there is an effective reporting cycle that provides transparency for children and young people about the steps that listed public authorities plan to take to realise children’s rights and the effectiveness of such steps that have been taken in previous years. Public authorities are subject to many reporting obligations, and it is incumbent on all of us to ensure that they can deliver what we ask them to report, and that we do not place overly prescriptive requirements on them, which can lead to tick-box exercises.

I think that the bill as strengthened by the Scottish Government amendments will strike the correct balance but, as I said, I am happy to work with the committee’s decision. As we have done with the Children and Young People (Scotland) Act 2014, the legislation will be supported by guidance for public authorities.

Amendment 35 agreed to.

Amendments 36 and 37 moved—[Maree Todd]—and agreed to.

The Convener

Amendment 59, in the name of Mary Fee, has already been debated with amendment 35.

Mary Fee

Given the supportive comments that the minister made on my amendments, I am happy to work with her ahead of stage 3, and I will not move amendment 59.

Amendment 59 not moved.

Amendment 60 not moved.

Amendment 49 moved—[Gillian Martin]—and agreed to.

Section 15, as amended, agreed to.

Section 16—Listed authorities

The Convener

Amendment 3, in the name of Alison Harris, is grouped with amendment 4.

Alison Harris

Regular reporting and public scrutiny play an essential role in embedding children’s rights in decision making. Accordingly, the duty on listed authorities to report every three years on the steps that they have taken to ensure compliance with UNCRC requirements has been widely welcomed. That builds upon and adds value to the existing reporting obligations on public authorities that are listed in the Children and Young People (Scotland) Act 2014.

Amendments 3 and 4 would bring the Scottish Prison Service and the Scottish Courts and Tribunals Service within the scope of the duty, given the impact that those agencies have on children’s experiences of their rights. The agencies have a leading role in implementing the UNCRC requirements, particularly in relation to the best interests of the child, under article 3, children’s relationships with their parents, under article 12, supporting children who are unable to live with their parents, under article 20, and youth justice, under article 40.

The SCTS will need to undertake a number of steps to ensure that its existing processes align with UNCRC requirements and progressively realise the rights of children, such as supporting children to engage with the courts, ensuring that solicitors and advocates receive adequate training, ensuring that all court and judiciary staff act compatibly with UNCRC, and supporting children to have their views taken into account in the adult criminal court when a parent or carer is being sentenced. Including the SCTS in the reporting duty will help to ensure scrutiny of that work, and ensure that children and young people are involved and that their views are taken into account.

Similarly, the SPS will need to undertake a number of steps to ensure that its existing processes are aligned with UNCRC requirements and progressively realise the rights of children and their families. Children and families who have a family member in prison experience stigma, keep the issue hidden, and often do not seek support, even when it is available. Evidence shows that the children of prisoners are three times more likely to suffer from mental health problems than their peers, that they experience the separation as a bereavement, and that families often suffer financially as well as emotionally when a parental figure is removed from the home. Those difficulties are exacerbated by the economic circumstances that many families experience before and after the prison sentence. Children are often not given information about parents being released from prison, and that can be traumatising and disempowering.

Including the SPS within the scope of the public body reporting duty will help to ensure that the best interests of children and families who are affected by parental imprisonment are at the heart of all planning and policy making—[Inaudible.] It will encourage a proactive approach to involving children and their families in discussions, and ensuring that families that are affected by imprisonment are not forgotten.

I move amendment 3.

Mary Fee

I support Alison Harris’s amendments in this group, which are significant and important. Since I came into Parliament I have campaigned for the rights of children of offenders to be protected, and I know only too well that the children of offenders are often among the most marginalised and vulnerable groups in our society. It is really important that we do all that we can to support and respect their rights. I am delighted that Alison lodged her amendments, and I am happy to support them.

Maree Todd

I am supportive of amendment 4, but I am of the view that amendment 3 is unnecessary. The bill puts in place significant requirements for the Scottish ministers to publish a children’s rights scheme and to review the scheme and its operation every year. As part of the review process, ministers will be required to publish a report on an annual basis.

Through those mechanisms, the Scottish Government will set out the steps that it is taking or its plans to comply with the duty in section 6 and, if amendment 21 is agreed to, to give better and further effect to the rights of children. That requirement and the requirement to report annually will relate to all the Scottish ministers’ functions, including those in relation to the Scottish Prison Service.

Alongside ministers’ requirements to report on the children’s rights scheme, sections 15 and 16 place reporting requirements on the public authorities listed in section 16, which have a significant role in the lives of children and young people.

The steps taken by the Scottish Prison Service to fulfil children’s rights will be set out in the children’s rights scheme, because the SPS is an executive agency of the Scottish Government and will be covered in reports on the children’s rights scheme under the requirement in section 13. Amendment 3 is therefore not necessary and I ask Alison Harris not to press it.

As I said, I am supportive of amendment 4, which will add the Scottish Courts and Tribunals Service to the list of public authorities that will be required to report every three years under section 15. The Scottish Courts and Tribunals Service is a key partner in ensuring the delivery of our ambition for a justice system that has children’s rights at its heart. I welcome the steps that the SCTS is already taking in support of children’s rights and its commitment to working with the Scottish Government on the implementation of the bill.

The Convener

I call Alison Harris to wind up and to press or withdraw amendment 3.

Alison Harris

I press amendment 3.

The Convener

The question is, that amendment 3 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Cole-Hamilton, Alex (Edinburgh Western) (LD)
Fee, Mary (West Scotland) (Lab)
Harris, Alison (Central Scotland) (Con)
Stewart, Alexander (Mid Scotland and Fife) (Con)

Against

FitzPatrick, Joe (Dundee City West) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)

The Convener

The result of the division is: For 4, Against 3, Abstentions 0.

Amendment 3 agreed to.

Amendment 4 moved—[Alison Harris]—and agreed to.

Section 16, as amended, agreed to.

Sections 17 to 20 agreed to.

Section 21—Incompatibility declarators

The Convener

Amendment 38, in the name of the cabinet secretary, is grouped with amendments 41, 44 and 45.

Maree Todd

Amendment 38 is about the meaning of subordinate legislation in section 21(3). The amendment adjusts the definition so that it links more precisely to the description of primary legislation that is used in subparagraphs (i) and (ii) of section 21(5)(b).

Amendment 41 will make it clearer that ministers have discretion as to the manner in which reports under section 23 are to be published, not whether those reports should be published at all.

Amendments 44 and 45 are technical amendments that are intended to improve and clarify the effect of section 32(1)(a) and (b). They will bring into line the description of the legislation that might give rise to the need to make “remedial regulations” under section 32 with that used in section 19.

I move amendment 38.

Amendment 38 agreed to.

Section 21, as amended, agreed to.

Section 22—Power to intervene in proceedings where strike down declarator or incompatibility declarator is being considered

Amendments 39 and 40 moved—[Maree Todd]—and agreed to.

Section 22, as amended, agreed to.

Section 23—Ministerial action following strike down declarator or incompatibility declarator

Amendment 41 moved—[Maree Todd]—and agreed to.

Amendment 5 not moved.

Amendment 50 moved—[Gillian Martin]—and agreed to.

Section 23, as amended, agreed to.

Sections 24 to 26 agreed to.

Section 27—Power to intervene in proceedings where compatibility question arises

Amendments 42 and 43 moved—[Maree Todd]—and agreed to.

Section 27, as amended, agreed to.

Sections 28 to 31 agreed to.

Section 32—Remedial regulations

Amendments 44 and 45 moved—[Maree Todd]—and agreed to.

Section 32, as amended, agreed to.

Sections 33 and 34 agreed to.

Section 35—Interpretation

Amendment 61 not moved.

Section 35 agreed to.

Sections 36 to 39 agreed to.

Section 40—Commencement

The Convener

Amendment 46, in the name of Maree Todd, is grouped with amendment 1. Amendment 46 pre-empts amendment 1, so if amendment 46 is agreed to, I cannot call amendment 1.

Maree Todd

As we reach the conclusion of the stage 2 process, it is important that we all pause and reflect on what the legislation does. Scotland is now more than halfway through passing world-leading, groundbreaking legislation to incorporate the United Nations Convention on the Rights of the Child into domestic law. We should not lose sight of the scale of that achievement.

Similarly, we should not lose sight of the fact that the real work starts when the bill is passed, to ensure that we efficiently and effectively commence its measures. There is no point in passing legislation if we do not get its implementation right, which is what will make the biggest difference for children and young people. I see the provisions in part 3 of the bill as critical in that regard. Sections 11 and 12 require the Scottish ministers to make a children’s rights scheme by publishing a draft scheme and consulting children and others. We will then be expected to make any changes before laying the scheme proposal before Parliament for a period of at least 28 days.

We have already rejected Alexander Stewart’s amendment to provide for a period of two years to produce the first children’s rights scheme, on the basis that the Government intends to do so before the act commences. Therefore, it is challenging to see how we might achieve that in the six-month period before commencement that Alex Cole-Hamilton’s amendment calls for, and enable the newly elected Parliament to play its rightful role in scrutinising our proposals and allow it to influence the design of the scheme.

As the Deputy First Minister said in his evidence to the committee, when a bill of this significance is taken forward, a balance is to be struck between recognising the priority of an early commencement and allowing the time that is needed for public authorities to prepare. The legal ramifications of the bill are of the highest order. Public authorities and all those that undertake functions of a public nature, including those that undertake functions pursuant to contracts and other arrangements, will be directly accountable though the courts for their actions. When the Parliament makes new law, it is important that fair notice is given to those whom it affects.

It is extremely positive that public authorities, from justice partners to local authorities and health boards, are supportive of such a progressive step in the realisation of children’s rights in Scotland. Those public authorities and others are already working to ensure that children’s rights are prioritised and that the necessary preparations for incorporation are undertaken.

It is important to allow all public authorities and those undertaking functions of a public nature adequate time to undertake vital steps such as reviewing policy and practice and ensuring that guidance can be developed and deployed and that staff delivering services can receive training. As members will be aware, the Convention of Scottish Local Authorities has written to every member of Parliament highlighting its support for a 12-month implementation period to allow Scotland’s public bodies to develop the processes and resources to support effective implementation.

The bill will apply not only to children’s services but to all public functions that engage children’s rights. Crucially, adequate time is needed to ensure that the procedures and court rules that are required to support claims under the bill are in place on commencement. As I said in relation to amendment 4, the Scottish Courts and Tribunals Service is a key partner in ensuring that our ambition for a justice system that has children’s rights at its heart is delivered. In our engagement with it, it has told us that a six-month implementation period would create significant operational difficulties for it. One example of a proposal that would create those difficulties is amendment 18, which requires the court or tribunal to give the child an opportunity to give their views on the effectiveness of the relief, remedy or order that the court is considering. There will need to be consideration of the methods and support that will be available to the child to enable them to provide their views, and amendments to the court rules will be required. Therefore, the Scottish Courts and Tribunals Service supports amendment 46, which will put in place a 12-month commencement date to ensure that the relevant changes can be considered and implemented appropriately.

We could apply a six-month commencement period to the bill, but directing how the legislation moves forward into practice from the centre does not sit comfortably with me. That is not how I would choose to do that—not when we need all relevant authorities to help us to deliver the fundamental cultural shift that we want this legislation to deliver for Scotland’s children and young people.

That said, there is more that we can do to show that we not only acknowledge the concerns about a long lead-in time for commencement of the bill and its measures but understand completely the impact that the pandemic has had on many children and young people. As the Deputy First Minister made clear to the committee at stage 1, we are keen to avoid an extended pre-commencement period. I think that our amendment 46 achieves that and will ensure that momentum is maintained by committing us all to working to commence the legislation one year from royal assent.

I move amendment 46.

Alex Cole-Hamilton

I will take great pride in moving amendment 1. As the Children and Young People’s Commissioner stated in the last line of his briefing to us, a year is a long time to wait. Actually, the children of Scotland have been waiting far longer than that. Indeed, the United Kingdom first ratified the convention in 1991. I was 14 then—a child myself—and I am now 43, and the convention is still not threaded through the laws of the land in the way it should be. We are not world leading in what we are doing. Many countries have gone before us and have outstripped us in many other areas of children’s rights.

The minister states that we need to give public authorities and local authorities time to get their systems in place and understand what the changes mean for them. However, they have had that time, and then some. Since 2011, public authorities have seen the direction of travel on children’s rights, and will have understood that they would be required to act compatibly with the convention. I remind the committee of the majority Scottish National Party Government’s manifesto commitment in 2011 to introduce a bill on the rights of children and young people. It did that, and then withdrew it and conflated it into the much broader Children and Young People (Scotland) Act 2014, which places duties on public authorities to have regard to and raise awareness of the United Nations Convention on the Rights of the Child.

We are not teaching people new tricks with this bill; we are talking about things that they have successfully baked into their systems. We should be proud of the work of things such as our rights-respecting schools, which recognise the rights that are afforded to our nation’s children under the articles of the convention and educate pupils about them. Therefore, ministers, councils and public bodies have been working with the convention on a day-to-day basis for the past seven years.

This Government has a poor record of slow walking children’s rights legislation—let us not split hairs about that. This is the committee that stewarded the Age of Criminal Responsibility (Scotland) Bill through the Parliament two years ago and, regardless of the fact that you would not ever see an eight-year-old prosecuted, that is still our age of criminal responsibility, and it is one of the lowest in the world. We cannot lead the world on children’s rights from the back of the pack.

I am not sure that the Government would have produced a commencement date if I had not lodged amendment 1, and I think that a year gives the situation far too long to slide when children’s rights are being violated every day and they need an opportunity to find redress and advocacy, and they need public authorities to build in processes to ensure that that does not happen any more. That should not be an afterthought; it should be baked into the strategy and the development of all policies and procedures, and baked into new institutions that are created.

Amendment 1 is supported unanimously right across the children’s sector. We need to listen to those people. I understand that some of what needs to be done might be difficult, but I think that, on children’s rights, we need to throw our cap over the metaphorical wall. The children’s commissioner thought that we could implement the proposals from the date of royal assent, although I accept that there might be some logistical challenges in doing that.

I have done extensive work on this. From speaking to stakeholders—those who have to deliver the proposals and those who have been calling for the changes for generations—I believe that amendment 1 strikes the right balance.

Gillian Martin

Too often, decisions affecting children are made without working with and engaging with children. I have to say that everyone on the committee wants the UNCRC to be incorporated as soon as possible, but we also want that incorporation to be effective.

The minister’s points about the fact that, if there were immediate implementation of the proposals, there would not be enough time to engage with children and children’s rights organisations on how the children’s rights theme should look and work have changed my mind on the issue. Further, we voted today to have a child-friendly complaints system. There needs to be time for engaging with children on that and for Parliament to scrutinise the proposals in that regard, so that we can get that right.

Alex Cole-Hamilton says that rights should be baked in already, but there might be public institutions where those rights are not baked in already, and those institutions need time in which to debate those issues and ensure that children are given the rights that we all want them to have.

All of that can happen only through working together with children, and I am concerned that the commencement date that Alex Cole-Hamilton proposes would not allow time for that to happen in the places where there are gaps. Our scrutiny of what is going on is important, and engagement with children across all public authorities is vital. I note that other countries that incorporated the convention did not immediately commence the legislation but, instead, allowed time for that vital work to be done. That is what I want to see happen in Scotland.

Joe FitzPatrick (Dundee City West) (SNP)

I appreciate that I am coming to the bill process later than colleagues, and it is appropriate to put on the record the fact that, looking at what has gone on from the outside, I have been impressed with the level of engagement that the committee has managed to have with children and young people, in spite of all the challenges. That relates to my difficulty with the six-month proposal in amendment 1, as I would like to know how we can ensure, within that timescale, that the processes that the Parliament and the other organisations need to take forward are informed by consultation with children and young people, particularly given that we are still in the middle of a pandemic. I am keen for the measures to be enacted as quickly as possible, but that needs to be done with children, not to children. Others might want to respond to that.

Until we have answered those questions, amendment 46 is appropriate, but I am still keen to come back at stage 3 and look at how we answer those questions so that children and young people are absolutely central to the implementation of the legislation when the bill becomes an act.

Mary Fee

I would like to speak in support of amendment 1. I fully support the amendment and all Alex Cole-Hamilton’s comments about commencement.

The specific point about the commencement of the Age of Criminal Responsibility (Scotland) Act 2019 was well made. It should shame us all that we have passed legislation without a commencement date, so that it has still not been enacted. I do not want to see that happen to the bill. All stakeholders and stakeholder organisations are prepared for this legislation. They have been preparing for it for a long time.

I agree that the bill is ambitious, so let us be ambitious with commencement and have it six months from the date of royal assent.

Alex Cole-Hamilton

I find the remarks that have been made by some members about not doing this to children but doing it with them patronising. They negate all the work that has been done by children and young people for years in trying to embed rights-respecting processes and a children’s rights-based framework into many of the strands of public life in this country. I direct members to the letter from the Scottish Youth Parliament, which is almost excoriating in the pressure that it puts on the committee for early commencement. Children are aware of the bill. They are watching intently. They understand what will be required of them and their input into the processes that it will be built around. However, to say that we can take this decision against their wishes completely undermines the work that has been done on this by children and young people. Their voices have been heard at every stage and they have shown a passion to see the bill commenced now or as soon as possible after royal assent and not slow walked, as this Government is wont to do with all aspects of children’s rights.

Alexander Stewart

I will support amendment 1 in the name of Alex Cole-Hamilton. We have already heard from Alex and other members about the support that the amendment has across the sector, including among stakeholder organisations and institutions that want to see the legislation enacted. I am therefore disappointed that the minister has indicated that more time will be required because, as we have already heard, organisations already know about the process and have been gearing up to ensure that they are ready. When we have such a huge groundswell of opinion from the sector and from individuals and organisations that represent and support children, I firmly believe that the bill needs to be actioned sooner rather than later.

Maree Todd

The Scottish Government remains committed to ensuring that momentum continues and that the bill is commenced as soon as possible. It is in no one’s interests, particularly not those of children and young people, for us to get this wrong. As we are a responsible Government, it is incumbent on me, as the minister, to listen to those public authorities that are saying that they require time to get this right.

Commencing a bill such as this within one year of royal assent would be one of the fastest approaches to commencement and implementation of legislation of such legal and constitutional significance. Amendment 46 strikes an appropriate balance between ensuring that momentum is not lost and giving public authorities time to prepare for their duties.

I just do not believe that it is credible to say that the Government is dragging its heels. The Age of Criminal Responsibility (Scotland) Act 2019 is an exceptionally complicated piece of legislation. The changes that had the most material positive effects for children and young people have been prioritised since royal assent. Since March last year, the response to Covid-19 has impacted the availability of key colleagues across the public sector and the capacity to make progress on the legislative programme both at Westminster and in the Scottish Parliament. We still expect that legislation to be fully commenced this year.

Nor are we dragging our heels on this legislation. We are delivering it during this session of Parliament, as promised. At a time when much of our legislative programme has had to be dropped, this bill has been prioritised and a commencement date is made clear in the bill. To commence within one year is hugely ambitious for this sort of legislation. It took two years for the Human Rights Act 1998 to commence.

We must not forget that we are pioneers. Scotland is the first country in the UK to incorporate the UNCRC into law and the first devolved legislature in the world to directly incorporate it. We have a duty to get that right.

I am pleased to have the commitment of our public authorities, which support the progression and realisation of children’s rights across all public services that the incorporation of the UNCRC will achieve. They are not dragging their heels either. COSLA recognises the need for a change in systems and practices, including training and development, and audit, the update of policies and the development of child-friendly guidance and of frameworks, materials and complaints processes. All of that requires meaningful engagement with children and young people as well as with other stakeholders.

All of that comes at a time when local authorities are carrying the heavy burden of dealing with the global pandemic. That has improved engagement for some. Children in my constituency in the rural Highlands may well find it easier to attend engagement that is held virtually rather than in person. However, for some children and young people, engagement is harder. Some of the children and young people who need the legislation most will be excluded from the work that is required to implement it within a six-month timetable. At the moment, due to the public health restrictions, a six-month commencement period would make it almost impossible to reach out to the digitally excluded children who most need the legislation.

I would not choose to direct such a culture change from the centre; I would prefer to engage and to work collaboratively, which inevitably takes time. As Gillian Martin pointed out, Parliament will not be sitting for a large part of the six-month period following royal assent. That will further truncate the opportunity for scrutiny of the scheme or of the complaints procedure. Engagement activities for children and young people would have to take place during the summer if there were a six-month commencement period. We all know that that is not an ideal time to engage with young people.

I therefore consider that committing to a one-year commencement period would be the responsible course of action. We have flexibility built in that would allow us to commence sooner on some or all of the bill if that proves possible. We are, however, ready and willing to work with the timetable that the Parliament decrees.

The Convener

The question is, that amendment 46 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

FitzPatrick, Joe (Dundee City West) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)

Against

Cole-Hamilton, Alex (Edinburgh Western) (LD)
Fee, Mary (West Scotland) (Lab)
Harris, Alison (Central Scotland) (Con)
Stewart, Alexander (Mid Scotland and Fife) (Con)

The Convener

The result of the division is: For 3, Against 4, Abstentions 0.

Amendment 46 disagreed to.

Amendment 1 moved—[Alex Cole-Hamilton].

The Convener

The question is, that amendment 1 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Cole-Hamilton, Alex (Edinburgh Western) (LD)
Fee, Mary (West Scotland) (Lab)
Harris, Alison (Central Scotland) (Con)
Stewart, Alexander (Mid Scotland and Fife) (Con)

Against

FitzPatrick, Joe (Dundee City West) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)

The Convener

The result of the division is: For 4, Against 3, Abstentions 0.

Amendment 1 agreed to.

Section 40, as amended, agreed to.

Section 41 agreed to.

Long title agreed to.

The Convener

That ends stage 2 consideration of the bill.

The bill will now be reprinted as amended at stage 2 and will be published on the website tomorrow morning. The Parliament has not yet determined when stage 3 will be held. Members will be informed of that in due course, along with the deadline for lodging stage 3 amendments. In the meantime, stage 3 amendments can be lodged with the clerks in the legislation team.

I thank the minister and her officials for attending the meeting. Our next meeting will be on Thursday 18 February.

The Presiding Officer (Ken Macintosh)

The next item of business is stage 3 proceedings on the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill. In dealing with the amendments, members should have before them the bill as amended at stage 2, the marshalled list of amendments and the groupings of amendments. As usual, the division bell will sound and proceedings will be suspended for five minutes for the first vote of the afternoon. The period of voting for each division will be one minute. Any member who wishes to speak in a debate on a group should press their request-to-speak button as soon as I call that group.

Members should now refer to the marshalled list.

Section 3—Power to modify the schedule

The Presiding Officer

Group 1 is on regulations under section 3. Amendment 1, in the name of the Cabinet Secretary for Education and Skills, is grouped with amendments 2 and 36.

The Minister for Children and Young People (Maree Todd)

The schedule to the bill sets out the UNCRC requirements, which consist of text from the convention and the first two optional protocols. Section 3 gives the Scottish ministers the power to modify the schedule in specific ways by regulation. It is important that the Scottish ministers can modify the schedule in line with any changes to the UNCRC or its optional protocols, or when an optional protocol is ratified by the United Kingdom. It may also be appropriate to modify the schedule should the powers of the Parliament change in the future—for example, by adding articles of the convention that are not currently included due to reasons of legislative competence. The power is subject to the affirmative procedure, so there will be a high degree of scrutiny regarding its use.

At stage 2, I supported an amendment of Alexander Stewart’s to require consultation in relation to regulations made under section 3. Amendments 1 and 2, which I will move, are minor drafting changes to make the effect of that provision clearer.

I support Ruth Maguire’s amendment 36, which places on the Scottish ministers the same consultation requirements as are included elsewhere in the bill. That will require ministers to consult the Children and Young People’s Commissioner Scotland and the Scottish Human Rights Commission prior to using the section 3 power, ensuring consistency between the duty to consult in section 3 and similar provision elsewhere in the bill.

I urge members to support amendment 1 and amendments 2 and 36.

I move amendment 1.

Ruth Maguire (Cunninghame South) (SNP)

The schedule to the bill sets out the UNCRC requirements, which consist of text from the convention and the first two optional protocols. Section 3 gives the Scottish ministers the power to modify the schedule in specific ways by regulation. Amendment 36 builds on the amendments that were made at stage 2 by requiring consultation with the Children and Young People’s Commissioner Scotland and the Scottish Human Rights Commission when the Scottish ministers make regulations under section 3, in line with the other consultation requirements in the bill. That synergy and consistency seem both appropriate and necessary. I welcome the minister’s support for amendment 36.

Jamie Greene (West Scotland) (Con)

I confirm briefly that the Scottish Conservatives will support all the amendments in group 1, and I specifically commend Ruth Maguire’s amendment 36. Although it is an Equalities and Human Rights Committee bill, the Education and Skills Committee has heard frequently from the commissioner, especially on issues involving the effects of lockdown measures on children and young people. The commissioner’s inclusion in consultation is welcome, and I note that the Government has done that at stage 3.

We may oppose a number of amendments, which I will speak to as and when we get to them. However, we will be pleased to support the majority of the amendments this afternoon.

Amendment 1 agreed to.

Amendment 2 moved—[Maree Todd]—and agreed to.

Amendment 36 moved—[Ruth Maguire]—and agreed to.

Section 4—Interpretation of the UNCRC requirements

The Presiding Officer

Group 2 is on interpretation of the UNCRC requirements. Amendment 3, in the name of the Cabinet Secretary for Education and Skills, is grouped with amendments 4, 5, 16 to 19, 23 and 24.

The Deputy First Minister and Cabinet Secretary for Education and Skills (John Swinney)

It is of fundamental importance that the requirements of the United Nations Convention on the Rights of the Child that are incorporated by the bill are interpreted and applied within the full context of the UNCRC itself, including the preamble and excluded provisions that cannot be incorporated within the powers of the Parliament at the present time.

It is also important that the requirements are interpreted and implemented using the rich sources of authoritative but non-binding materials produced by the UN Committee on the Rights of the Child, when relevant. The courts can and do, as a matter of course, consider a wide range of sources of interpretation that are relevant to the cases that come before them. The purpose of section 4 is to bring transparency to, and to recognise the significance of, sources that are fundamental to the understanding, interpretation and implementation of children’s rights. The intention is that the bill should promote understanding of those sources and that their use should become routine practice among public authorities, courts and practitioners in support of children and young people and the fulfilment of their rights.

That is why we sought to address the matter at stage 2. At that stage, members of the Equalities and Human Rights Committee also made amendments to section 4. As we indicated during the stage 2 debates, we are concerned that some of those amendments might have unintended consequences. In particular, ministers are concerned that, although section 4(1), as amended at stage 2, requires the courts to take sources into account only when they consider them to be relevant, the courts will first have to consider all the sources to determine what is and is not relevant. That risks placing a disproportionate burden on litigants and the courts, and it could therefore delay the achievement of effective remedies for breaches of children’s and young people’s rights. The changes to section 4 also risk the sources that are included in that section being interpreted in a way that is not intended. The sources are widely understood to be authoritative sources of interpretation, but they are not legally binding.

Since stage 2, the Scottish Government has continued to work with key stakeholders, including the Children and Young People’s Commissioner Scotland and Together, the Scottish Alliance for Children’s Rights, to better understand what those stakeholders were seeking to achieve and to explore how best to achieve it. We have lodged a range of amendments that we understand carry stakeholder support, which will restore—and improve—the approach in section 4 and elsewhere in the bill as introduced.

Amendment 3 will restore the original drafting in section 4(1), to avoid the unintended consequence that I set out. That will allow courts to retain discretion in relation to whether any sources should be taken into account in cases that come before them.

Since stage 2, key stakeholders including the children’s commissioner and Together have expressed interest in expanding the list of sources that is set out in section 4(2). We are clear that the UNCRC requirements should be interpreted in their full international context. It is important that we provide for that in a way that is not exclusive or prescriptive and does not prevent the list of sources from being added to in the future.

Amendments 4 and 5 seek to achieve that aim. Amendment 4 will remove new paragraph (g) of section 4(2), and amendment 5 will remove the detailed list at subsection (5) of section 4. Paragraph (g) of section 4(2) will be replaced by a much broader provision, to include

“other international law and comparative law.”

That will ensure that it is clear in the bill that there is a rich tapestry of global human rights instruments and law that can assist courts, practitioners and public authorities in the interpretation and implementation of children’s rights under the UNCRC, whether that assistance comes from the United Nations, the Council of Europe or other jurisdictions.

I am delighted that the recommendations of the national task force for human rights leadership were published on Friday. After the forthcoming elections, the Parliament will have the opportunity to consider how best to deliver a human rights framework for all. Our work on the bill provides a strong foundation for that work and recognises the intersectionality of human rights.

It will be important that children’s rights under the bill are considered in the context of wider international human rights obligations under, for example, the Convention on the Elimination of All Forms of Discrimination Against Women and the Convention on the Rights of Persons with Disabilities, which have a direct impact on the fulfilment of children’s rights under the UNCRC. Amendments 4 and 5 will ensure that that wider international context and intersectionality are provided for, based on current relevant conventions and potential conventions to come.

As amended at stage 2, sections 12 and 13 place requirements on the Scottish ministers to publish a children’s rights scheme and to review the scheme and its operation every year. It is intended that those mechanisms will afford transparency and accountability to the steps that ministers take or plan in relation to the compatibility duty in section 6 and to steps that are taken to give better and further effect to the rights of children.

Amendments 16 to 19 and 23 and 24 will therefore provide for the consideration of relevant international or comparative law in relation to sections 12 and 13, thereby creating an approach that is consistent with that of section 4. They will ensure that the Scottish ministers consider the sources that amendment 4 will add to section 4 when they make, amend or report on the children’s rights scheme.

I welcome the fact that members of the Equalities and Human Rights Committee encouraged us to take a closer look at our approach to those key matters, particularly the intersectionality of rights, laws and conventions. I hope that what the amendments in group 2 will put in place gives members confidence that we have the right approach and that members will therefore support all the amendments in the group.

I move amendment 3.

Jamie Greene

The amendments in this group would effectively reverse some of the changes to the bill that were made by majority in the committee at stage 2, and I am not entirely convinced that the case has been made for the removal of those changes. In amendment 3, for example, it may seem a small thing to change “must” to “may”, but the effect of doing so would be to weaken the bill’s ability to allow courts the flexibility needed to consider every aspect of the UNCRC and related texts. If the UNCRC is to be incorporated into Scots law as fully as possible, it is only right that the courts must consider both the UNCRC and any related texts. That is the key, so far as it is relevant to the interpretation of the UNCRC. Therein lies the get-out. It is down to the courts’ opinions and subjectivity which section 4(2) issues they take into account.

Amendments 4 and 5 also seek to undo improvements that were made to the bill at stage 2. The amendments would remove explicit references to the United Nations treaty, general comments, concluding observations and comparative law. We feel that the inclusion of those references strengthens this section of the bill by ensuring that the courts adopt a comprehensive approach in their interpretation of the UNCRC requirements.

The cabinet secretary mentioned wanting to have a rich tapestry of sources available. He will not get a rich tapestry by removing things from the bill in the manner suggested, so we will vote against all the amendments in the group.

John Swinney

I will briefly address the issues that Jamie Greene has raised. He has cited particularly the provisions in amendment 3, but I do not accept his interpretation of the amendment. We are trying to recognise the importance of the courts being able to take the widest possible view on sources of interpretation, so that they can consider any issues that are presented to them. We are trying to take the most open approach possible in order to enable the courts to exercise the widest possible scope and, as a consequence, take into account the broadest range of factors in determining what would be appropriate sources of interpretation. That is the basis on which the Government has lodged the amendments.

My general point on the group is that we are specifically expanding the range of sources that can be included to include other international law and comparative law. I hope that that demonstration of further steps that have been taken to expand sources provides the necessary reassurance to Parliament that the Government’s intention in section 4 is to enable the broadest perspective to be taken in the interpretation of the requirements of the convention.

The Presiding Officer

The question is, that amendment 3 be agreed to. Are we agreed?

Members: No.

The Presiding Officer

We are not agreed. As this is the first division of the afternoon, I suspend the meeting for five minutes to call members to the chamber and to allow members who are online to access the voting app.

The Presiding Officer

We move to the division on amendment 3.

The vote is now closed. Members should please let me know if they could not vote.

For

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Baker, Claire (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bibby, Neil (West Scotland) (Lab)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Harper, Emma (South Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Lochhead, Richard (Moray) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Marra, Jenny (North East Scotland) (Lab)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McDonald, Mark (Aberdeen Donside) (Ind)
McKee, Ivan (Glasgow Provan) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
McNeill, Pauline (Glasgow) (Lab)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Rennie, Willie (North East Fife) (LD)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Russell, Michael (Argyll and Bute) (SNP)
Smyth, Colin (South Scotland) (Lab)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, David (Highlands and Islands) (Lab)
Stewart, Kevin (Aberdeen Central) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wightman, Andy (Lothian) (Ind)
Wishart, Beatrice (Shetland Islands) (LD)
Yousaf, Humza (Glasgow Pollok) (SNP)

Against

Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Reform)
Bowman, Bill (North East Scotland) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Corry, Maurice (West Scotland) (Con)
Davidson, Ruth (Edinburgh Central) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Golden, Maurice (West Scotland) (Con)
Greene, Jamie (West Scotland) (Con)
Harris, Alison (Central Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Kerr, Liam (North East Scotland) (Con)
Lindhurst, Gordon (Lothian) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Mason, Tom (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Wells, Annie (Glasgow) (Con)
Whittle, Brian (South Scotland) (Con)

The Presiding Officer

The result of the division is: For 85, Against 25, Abstentions 0.

Amendment 3 agreed to.

Amendment 4 moved—[John Swinney].

The Presiding Officer

The question is, that amendment 4 be agreed to. Are we agreed?

Members: No.

The Presiding Officer

There will be a division.

The vote is closed. Members should please let me know if they could not vote.

For

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Baker, Claire (Mid Scotland and Fife) (Lab)
Ballantyne, Michelle (South Scotland) (Reform)
Beamish, Claudia (South Scotland) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bibby, Neil (West Scotland) (Lab)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Harper, Emma (South Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Lochhead, Richard (Moray) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Marra, Jenny (North East Scotland) (Lab)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McDonald, Mark (Aberdeen Donside) (Ind)
McKee, Ivan (Glasgow Provan) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
McNeill, Pauline (Glasgow) (Lab)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Rennie, Willie (North East Fife) (LD)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Russell, Michael (Argyll and Bute) (SNP)
Smyth, Colin (South Scotland) (Lab)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, David (Highlands and Islands) (Lab)
Stewart, Kevin (Aberdeen Central) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wightman, Andy (Lothian) (Ind)
Wishart, Beatrice (Shetland Islands) (LD)
Yousaf, Humza (Glasgow Pollok) (SNP)

Against

Balfour, Jeremy (Lothian) (Con)
Bowman, Bill (North East Scotland) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Corry, Maurice (West Scotland) (Con)
Davidson, Ruth (Edinburgh Central) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Golden, Maurice (West Scotland) (Con)
Greene, Jamie (West Scotland) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harris, Alison (Central Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Kerr, Liam (North East Scotland) (Con)
Lindhurst, Gordon (Lothian) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Mason, Tom (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Wells, Annie (Glasgow) (Con)
Whittle, Brian (South Scotland) (Con)

The Presiding Officer

The result of the division is: For 86, Against 25, Abstentions 0.

Amendment 4 agreed to.

Amendment 5 moved—[John Swinney].

The Presiding Officer

The question is, that amendment 5 be agreed to. Are we agreed?

Members: No.

The Presiding Officer

There will be a division.

For

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Baker, Claire (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bibby, Neil (West Scotland) (Lab)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Harper, Emma (South Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Lochhead, Richard (Moray) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Marra, Jenny (North East Scotland) (Lab)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McDonald, Mark (Aberdeen Donside) (Ind)
McKee, Ivan (Glasgow Provan) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
McNeill, Pauline (Glasgow) (Lab)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Rennie, Willie (North East Fife) (LD)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Russell, Michael (Argyll and Bute) (SNP)
Smyth, Colin (South Scotland) (Lab)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, David (Highlands and Islands) (Lab)
Stewart, Kevin (Aberdeen Central) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wightman, Andy (Lothian) (Ind)
Wishart, Beatrice (Shetland Islands) (LD)
Yousaf, Humza (Glasgow Pollok) (SNP)

Against

Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Reform)
Bowman, Bill (North East Scotland) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Corry, Maurice (West Scotland) (Con)
Davidson, Ruth (Edinburgh Central) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Golden, Maurice (West Scotland) (Con)
Greene, Jamie (West Scotland) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harris, Alison (Central Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Kerr, Liam (North East Scotland) (Con)
Lindhurst, Gordon (Lothian) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Mason, Tom (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Wells, Annie (Glasgow) (Con)
Whittle, Brian (South Scotland) (Con)

The Presiding Officer

The result of the division is: For 83, Against 26, Abstentions 0.

Amendment 5 agreed to.

Section 6—Acts of public authorities to be compatible with the UNCRC requirements

The Presiding Officer

The third group of amendments is on the meaning of public authorities. Amendment 6, in the name of John Swinney, is grouped with amendments 7 to 9.

Maree Todd

Section 6 is critical to the bill: it contains the central compatibility duty, which will require, to the fullest extent possible within the Parliament’s powers, that public authorities do not act incompatibly with the UNCRC requirements set out in the schedule. Section 6, therefore, needs to be as strong and accurate as it can be.

The definition of a “public authority” in section 6(1) is intentionally wide and will include the full range of public authorities that it is possible to cover. Section 6(3) provides that that includes, in particular, the Scottish ministers, a court or tribunal and

“any person certain of whose functions are functions of a public nature”.

That final element is intentionally broad and is designed to capture the wide variety of public functions that are, and may be in the future, undertaken by those other than core public authorities.

I understand why Mary Fee sought to include the further provision at section 6(3)(a)(iv) and the intent behind her amendment at stage 2. We all want it to be crystal clear and for there to be no dubiety that all public bodies that have functions in relation to the care of children should be included in the definition of a public authority in the bill. I assure Mary Fee and other members that those functions were already captured by the wording of section 6 prior to the amendment, and will continue to be captured without including the provision in the bill.

Far from achieving the desired effect, the provision potentially has the opposite effect, in that it may suggest that other functions that are not specifically named are not included, and that could create uncertainty about the otherwise wide application of the definition of a “public authority” in section 6. That is why we have lodged amendment 7. I hope that members will understand those reasons and support amendment 7.

There are also potential unintended consequences of paragraph (b) of section 6(3A), which risks unintentionally narrowing the scope of section 6(3A)(a) and therefore the compatibility duty more broadly. However, I understand the intent behind that provision. I have been clear that it is the Scottish Government’s intention that the requirement not to act incompatibly with the UNCRC requirements should extend to others where they are carrying out functions under contracts or other arrangements with public authorities. That is the effect of section 6(3A)(a). I do not believe that that should be subject to the further qualification in section 6(3A)(b) that the core purpose is the provision of a service that fulfils children’s rights. That could introduce confusion in relation to the scope of the UNCRC requirements in contracting out arrangements, which is not what is intended. Amendment 8 seeks to remove that provision and amendment 9 seeks to replace part of it.

Section 6 is broadly modelled on an equivalent provision in section 6 of the Human Rights Act 1998. However, the bill as amended at stage 2 seeks to go further than the 1998 act by making additional provision—in section 6(3A)(a)—in relation to contracting out arrangements. That reflects the fact that, for some years now, public services in Scotland have been provided by a wide range of core and hybrid public authorities, third sector bodies and private providers.

There is concern among stakeholders that the courts’ interpretation of what constitutes a function “of a public nature” under the 1998 act has become overly narrow. I have sympathy with that concern, which is why the Scottish Government lodged an amendment at stage 2 to introduce what is now section 6(3A)(a) and make it clear that functions that are

“carried out under a contract or other arrangement with a public authority”

fall within the scope of the compatibility duty in section 6. Amendment 9 seeks to provide certainty that how a function is funded should not determine its classification as a function “of a public nature”.

Amendment 6, which is the other Government amendment in the group, is a minor amendment to improve the wording of section 6.

I hope that members accept that amendments 6 to 9 are helpful as they will apply greater clarity and certainty to this vital duty, and that members will support them.

I move amendment 6.

Jamie Greene

I thank the minister for clarifying the intention behind amendments 6, 8 and 9, which will make helpful changes to the bill. However, we still have difficulties with amendment 7. Let us take a look at its effect.

Section 6 states:

“It is unlawful for a public authority to act in a way which is incompatible with the UNCRC”.

It goes on to say what the term “public authority” includes, but the Government’s amendment 7 seeks to remove the phrase

“all public bodies who have functions in relation to the care of a child”,

which was included at stage 2. The argument has been made that its inclusion is in some way restrictive rather than inclusive. The Government argues that it somehow narrows the definition of “public authority”, but we would argue that it widens it and makes it inclusive.

Perhaps “all public bodies” would have been a better phrase, but we have the wording that was inserted at stage 2, which the committee agreed to, and we believe that it should remain. I am not convinced that the case has been made for its removal. Surely

“all public bodies who have functions in relation to the care of a child”

should be encompassed in what is the very essence of the bill. As was stated, section 6 is one of the most important sections of the bill. Perhaps the minister could explain when she sums up why she believes that removal of the phrase

“all public bodies who have functions in relation to the care of a child”

is necessary.

The Presiding Officer

I invite the minister to wind up.

Maree Todd

I am grateful to Mr Greene for his support for some of the amendments in the group. We need section 6 to be as strong and accurate as it can be.

Amendments 7 and 8 address the concern that the latest provision suggests that functions that are not specifically named are not covered by the duty not to act incompatibly. The concern is that the specific provision in relation to the care of children undermines the general application of the compatibility duty to all functions of public authorities. It introduces the idea that children’s rights are relevant only in certain children’s services, which is not at all desirable.

Jamie Greene

Again, the tone of that is that the provision somehow restricts the application of the bill. The phrase that the Government is trying to remove is

“all public bodies who have functions in relation to the care of a child”.

There is nothing restrictive about that.

Maree Todd

It is by definition restrictive because it says

“who have functions in relation to the care of a child”.

We are trying to produce a bill that will introduce compatibility duties on all public authorities and the idea that children’s rights are relevant in every sphere of public life and society.

An example that I would give is the digital environment. Arguments are put forward that children do not need to be protected in digital areas that are not targeted at children. I would argue that children need to be protected entirely in the digital environment. The compatibility requirement should not be targeted just at those areas that are specifically directed at children; it needs to be broader than that. Children are everywhere, which is why we are concerned about the restrictive nature of the provision and why we are keen to remove what we perceive to be an unintended restriction. In addition, Mary Fee’s amendment introduced the term “public bodies”, which added a complexity, as that term is not used elsewhere in the bill.

To guard against a narrow interpretation of what constitutes a function of a public nature, amendment 9 provides certainty that how a function is funded should not determine its classification as a function of a public nature. Again, I would be grateful for the chamber’s support for that amendment.

Amendment 6 agreed to.

Amendment 7 moved—[Maree Todd].

The Presiding Officer

The question is, that amendment 7 be agreed to. Are we agreed?

Members: No.

The Presiding Officer

There will be a division.

The vote is closed. Members should please let me know if they were not able to vote.

For

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Baker, Claire (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bibby, Neil (West Scotland) (Lab)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Harper, Emma (South Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Lochhead, Richard (Moray) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Marra, Jenny (North East Scotland) (Lab)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McDonald, Mark (Aberdeen Donside) (Ind)
McKee, Ivan (Glasgow Provan) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
McNeill, Pauline (Glasgow) (Lab)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Russell, Michael (Argyll and Bute) (SNP)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, David (Highlands and Islands) (Lab)
Stewart, Kevin (Aberdeen Central) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wightman, Andy (Lothian) (Ind)
Wishart, Beatrice (Shetland Islands) (LD)
Yousaf, Humza (Glasgow Pollok) (SNP)

Against

Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Reform)
Bowman, Bill (North East Scotland) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Corry, Maurice (West Scotland) (Con)
Davidson, Ruth (Edinburgh Central) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Golden, Maurice (West Scotland) (Con)
Greene, Jamie (West Scotland) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harris, Alison (Central Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Kerr, Liam (North East Scotland) (Con)
Lindhurst, Gordon (Lothian) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Mason, Tom (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Wells, Annie (Glasgow) (Con)

The Presiding Officer

The result of the division is: For 84, Against 25, Abstentions 0.

Amendment 7 agreed to.

Amendment 8 moved—[Maree Todd]—and agreed to.

Amendment 9 moved—[John Swinney]—and agreed to.

Section 7—Proceedings for unlawful acts

The Presiding Officer

Group 4 is on regulations under section 7. Amendment 10, in the name of the cabinet secretary, is grouped with amendments 11 to 13 and 37.

John Swinney

Section 7 makes provision about proceedings in relation to acts of public authorities that are incompatible with the UNCRC requirements. As amended at stage 2, section 7(5) places a duty on the Scottish ministers to do certain things by regulations in relation to remedies for tribunals—that is, adding to the relief or remedies that a particular tribunal can grant, the grounds on which they can be granted and the orders that the tribunal may make.

The duty on the Scottish ministers applies where they consider that regulations are necessary to ensure that the tribunal can provide appropriate remedies for breaches of the compatibility duty in the bill. That is intended to ensure that, where a tribunal does not have the power to provide an appropriate remedy for a breach of the compatibility duty, the Scottish ministers can take steps to provide for that quickly, without having to resort to primary legislation.

As the minister set out at stage 2, the section 7(5) power is subject to parliamentary scrutiny through the affirmative procedure, which reflects the fact that the making of regulations under section 7(5) cannot be guaranteed by the Scottish ministers. Amendments 10 to 13 adjust that provision, so that the duty on ministers is instead to lay draft regulations before the Parliament in the circumstances set out in section 7(5).

The technical amendments in this group seek to provide absolute clarity and accuracy in the bill about the purpose and effect of the added provisions.

I move amendment 10.

Ruth Maguire

Section 7(5) of the bill requires that the Scottish ministers must, in certain circumstances, lay regulations to add to the remedies that a particular tribunal can award. The requirement will apply where the Scottish ministers consider it necessary to ensure that the tribunal can award an appropriate remedy where a public authority has acted incompatibly with the UNCRC requirements.

Amendments were made at stage 2 that require the Scottish ministers to consult

“such persons as they consider appropriate”

in making such regulations. Amendment 37 seeks to apply greater clarity and consistency on who should be consulted. It will further provide in section 7(5A) that specific consultation is required with the Commissioner for Children and Young People in Scotland and the Scottish Commission for Human Rights, in line with the other consultation requirements in the bill.

I welcome the Scottish Government’s support for the amendment.

John Swinney

I simply place on the record that the Government fully supports Ruth Maguire’s amendment, which will place the same consultation requirements on the use of that power that are included elsewhere in the bill. I urge members to support amendments 10 and 37.

Amendment 10 agreed to.

Amendments 11 to 13 moved—[John Swinney]—and agreed to.

Amendment 37 moved—[Ruth Maguire]—and agreed to.

After section 10A

The Presiding Officer

Group 5 is on guidance on part 2. Amendment 38, in the name of Mary Fee, is the only amendment in the group.

Mary Fee (West Scotland) (Lab)

The issue of guidance has been of interest to many stakeholders and many members across all parties throughout the consideration of the bill, which prompted me to lodge my amendments in relation to that at stage 2. However, I was happy to listen to the minister and not to press those amendments.

As with much else in the bill, the issue has been proceeded with in a spirit of co-operation and consensus. I am pleased that we have been able to do that in making the provision of guidance statutory.

I acknowledge and welcome the fact that the Scottish Government always intended to prepare and publish guidance, but it is important that that commitment is made a requirement and that it is clear through the bill that guidance will be made available in support of effective implementation. Amendment 38 will deliver that. It will ensure that ministers are required to issue guidance in support of part 2 of the bill and that there is wide consultation, including with children and young people, on what is contained in the guidance.

Although guidance will not replace the responsibility that all public authorities will have to ensure that their actions are compatible with children’s rights, the amendment will strengthen the bill and ensure that public authorities are supported to fulfil the rights of children and young people.

I hope that members across the chamber agree with me and will support the amendment.

I move amendment 38.

Maree Todd

I thank Mary Fee for not pressing her amendments in relation to guidance at stage 2 and for allowing us the time to discuss the issues with her and stakeholders.

It has always been the Scottish Government’s intention that a range of guidance and materials would be developed in partnership to support effective implementation of children’s rights. This is, after all, groundbreaking legislation, and there will be a lot to think about in how we can best go about implementing its duties. Authorities and individuals will rightly need help and support on that. Officials are already engaging closely with public bodies and other key stakeholders to ensure that they are supported to realise children’s rights in practice. That will be fundamental to the bill’s success.

However, as I said at stage 2, Government guidance cannot and should not replace the responsibility that will rest on all public authorities to ensure that they comply with their duty under section 6. Guidance is not a substitute for considering the rights of children in all circumstances or for public authorities being proactive in their consideration of what that means for the delivery of their services to children and young people. It is only through a proactive culture of everyday accountability for children’s rights across public services that we can ensure that children’s rights are fully protected, respected and fulfilled.

I thank Mary Fee for her co-operation and welcome amendment 38 to require the Scottish ministers to issue guidance to support the implementation and operation of part 2 of the bill.

Amendment 38 agreed to.

Section 11—Children’s Rights Scheme

The Presiding Officer

Group 6 is on the children’s rights scheme. Amendment 14, in the name of the cabinet secretary, is grouped with amendments 39, 15, 40, 41, 20, 21 and 22.

Maree Todd

The children’s rights scheme, which is provided for in section 11, is a crucial and fundamental mechanism to promote and deliver the aims and ambitions that underpin the bill to proactively change the culture in Scotland. I welcome the significant and positive engagement from members and stakeholders with the scheme’s provisions throughout the bill process. We all want to see the scheme strengthened where possible, particularly in relation to the list of matters that are included in section 11(3).

On the Government amendments in group 6, amendment 14 strengthens section 11(3)(a), and recognises the important role that children’s advocacy services can play in ensuring that children are able to participate in the making of decisions that affect them. If we want children to participate in making decisions that affect them, we must recognise that they require support to do so, particularly when they have additional support needs or face challenges or barriers to knowing their rights. Amendment 14 strengthens the scheme in that respect.

Amendment 15 will ensure that there is additional transparency around the protection of children’s rights in private settings. The bill ensures that there is direct accountability, through the compatibility duty in section 6, in relation to all public functions. This reflects the fact that the UNCRC, as do other international human rights treaties, places obligations on states to ensure that rights are respected, protected and fulfilled.

The compatibility duty in section 6 will mean that ministers will be required to take all measures required by the UNCRC requirements, which could include legislative measures, to ensure that children’s rights are protected in private settings. Amendment 15 adds to that by seeking to provide transparency in relation to that dimension of the duty on ministers, and in relation to steps taken by ministers to give better and further effect to the rights of children in private settings. In implementing that requirement through the children’s rights scheme, the Scottish Government will consider best practice globally and will be guided by, among other things, the UN’s “Guiding Principles on Business and Human Rights”.

Amendments 20 and 21 are technical and I hope that their purpose is clear. They ensure consistency between section 11(1) as amended at stage 2 and section 13(3), and they will require that reports about the children’s rights scheme under section 13(3) must also include a summary of the actions taken by the Scottish ministers for the purpose of

“securing better or further effect of the rights of children”

in the reporting period.

Amendment 22 is a minor technical amendment that improves the wording of section 13(3).

On amendment 39, the Scottish Government supported the inclusion of section 11(3)(aa) in the bill at stage 2, and we are happy to support amendment 39, which seeks to provide the further clarity that Together and the children’s commissioner are seeking, not least through the annual scrutiny and associated reporting requirements for the scheme. We can all agree that we should all be doing everything that we can to identify and address the needs of children who are most at risk of their rights being unfulfilled.

The Scottish ministers also support amendment 40, and I pay tribute to all that Mark Griffin has done during the current and previous parliamentary sessions to promote the communication support needs of children and young people. The Scottish ministers will be happy to help to give effect to amendment 40 in practice by ensuring that information on how to communicate inclusively with children and young people will be included in all relevant guidance issued in support of the bill, and we will of course involve key stakeholders in that work.

I move amendment 14 and encourage members to support all the amendments in this group.

Joe FitzPatrick (Dundee City West) (SNP)

I think that all the committee members agreed with the intention of the stage 2 amendment on this issue that was agreed to, if not on the execution. As drafted, it did not quite achieve what it set out to do. Therefore, amendment 39 seeks to ensure that there is good transparency and accountability through the children’s rights scheme for steps taken by the Scottish ministers to “identify and address” the needs of children who are most at risk of their rights being unfulfilled.

To ensure that children’s rights are realised for all children and young people, it is essential that scrutiny in relation to the barriers faced by those whose rights are most at risk of being unfulfilled is prioritised. Amendment 39 has been developed through co-working with members of Together. Together said:

“This amendment is about making sure that we understand and recognise the rights issues facing children and young people from specific population groups.

This will include children and young people with learning disabilities, care experienced children and young people and children and young people who are impacted by parental imprisonment”.

Ensuring that the experience of those children and young people is reflected in the children’s rights scheme is critical. Those children can face considerable barriers to accessing their human rights and we can see evidence of that when we think about the experience and life opportunities of children and young people with learning disabilities. For example, recent findings from the Scottish Learning Disabilities Observatory showed that premature mortality was 12 times higher for children and young people with learning disabilities than for the rest of the population. That is simply unacceptable.

Amendment 39 is therefore important because it will ensure that there will be a focus in the children’s rights scheme on the barriers that are faced by those children and young people whose rights are most at risk and on the steps that ministers plan to take to address that. That was the intention of the stage 2 amendment, but its drafting did not quite achieve that. That is what my amendments correct. Amendment 41 is a technical amendment with the purpose of removing a redundant definition.

As was conveyed by the minister in relation to amendment 14, which I am pleased to support, the provision of advocacy or other support services will be critical for some children to enable them to participate in decisions that are made about them. In a similar vein, I also support Mark Griffin’s amendment 40, which will ensure that children with the most complex support needs are able to receive inclusive communication. We should not underestimate the difference that having such statutory duties and requirements in place will make for some children. I am also happy to support the other amendments in the group.

The Presiding Officer

Thank you, Mr FitzPatrick. It was a slightly bad line, but I think that most members will have been able to follow that.

Mark Griffin (Central Scotland) (Lab)

We will be supporting all the amendments in this group.

Amendment 40 in my name is spons