Meeting of the Parliament

Meeting date: Tuesday, June 27, 2023

Official Report 962KB pdf

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

The next item of business is a statement by Shirley-Anne Somerville on the reconsideration of the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill. The cabinet secretary will take questions at the end of her statement. Therefore, there should be no interventions or interruptions.

14:50  

I thank the Parliament for making the time for the statement in a busy week. It is important that I give an update on the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill before we break for the summer recess.

As the First Minister set out in the policy prospectus, we remain absolutely committed to Scotland being the first United Kingdom nation to incorporate the UNCRC into domestic law, ensuring that we are a country that respects, protects and fulfils children’s rights. Members were last updated on progress with the bill in February and March. At that stage, we made it clear that we intended to amend the bill to address the Supreme Court’s judgment and that there was engagement about the amendments with UK Government lawyers in the Office of the Advocate General for Scotland. As we explained in those updates, that engagement has been focused on how the duty to act compatibly with the UNCRC can apply when a public authority is acting under powers conferred by UK acts in devolved areas.

In drafting amendments to the compatibility duty, we have tried to balance three important considerations: protecting children’s rights to the maximum effect possible; minimising the risk of another Supreme Court referral; and making the law as accessible as possible for users. I will explain what that means for the powers in the bill that will be returned to Parliament.

With regard to the coverage for children’s rights, it is clear from the Supreme Court judgment that the bill cannot require public authorities to act compatibly with the UNCRC when they are delivering duties and powers in a UK act in devolved areas and that act requires them to act incompatibility. However, our objective has been to ensure that the compatibility duty should apply both when public authorities are delivering duties under a UK act in a devolved area that requires them to act compatibly with the UNCRC and when they are delivering duties under a UK act in a devolved area that gives them some discretion to act compatibly.

Our assessment has been that amendments to the bill could achieve that and comply with the Supreme Court judgment. We consider that one way that we could cover as much devolved legislation as possible would be to differentiate between existing and future UK acts in devolved areas so that the compatibility duty applies to existing legislation in those categories but not to future legislation. We also believe that we could bring in scope provisions in future UK acts in devolved areas by adding to the bill a regulation-making power that could, with the approval of the Scottish Parliament, extend the compatibility duty to devolved functions that were created under UK acts in the future, even if only case by case.

There has been engagement since September last year with UK lawyers in the Office of the Advocate General on our proposals for amending the bill. Although that has helped us to develop those proposals, the UK Government lawyers have continued to raise questions, and it has become clear to me that, no matter what is put to them, they cannot give us reassurance that would guarantee that there will not be another referral to the Supreme Court.

Alongside that engagement, we have been considering the need for clarity in the duties imposed by the bill. Our assessment is that clarity reduces, and complexity increases, as we seek to achieve greater coverage. That is the result of the legislative landscape within which we operate as a devolved Administration and the implications of the Supreme Court judgment.

Our analysis of the usability of the approach that I have outlined has revealed that, although it would give the greatest coverage, it would be extremely complex for users. That could arise because, for example, of the need to establish the legal source of a public authority’s function and, if that source is a UK act in a devolved area, whether it is a function from an act that was passed before the commencement of the UNCRC bill or whether it has been modified by a UK enactment that was commenced post UNCRC bill commencement.

If the original act or modification was passed after the commencement of the UNCRC bill, the user would have to establish whether the legislation had been brought into the scope of the compatibility duty by the use of the regulation-making power. Complexities would become even more challenging where a UK act had been amended by an act of the Scottish Parliament. Our assessment is that, as we seek more coverage in the compatibility duty, the provisions become more complex, uncertain and challenging for children and young people and their representatives, and for public authorities to work with.

We have discussed the options available with the children’s commissioner’s office, Together, the Scottish Human Rights Commission, UNICEF UK and members of the Scottish Youth Parliament, and we have reached the conclusion that the most effective route forward is to progress the option that minimises the risk of a further referral to the Supreme Court, and also minimises the complexity that users will need to navigate.

That option is for the compatibility duty to apply only when public authorities are delivering duties under powers in an act of the Scottish Parliament. That will, of course, entail a loss of coverage of the compatibility duty in respect of certain laws that relate to children’s rights. There are many existing acts of the UK Parliament that set out duties that impact on children and young people in devolved areas, but I have time to give but two examples here.

The compatibility duty would not apply to services being delivered under the Education (Scotland) Act 1980. That covers the provision of education, including standards, special needs provision, and free school books and equipment. Another example of where the compatibility duty will not apply is when services are being delivered under the Children (Scotland) Act 1995. That will include, for example, local authorities’ duties in relation to looked-after children and personal relations with their parents and brothers and sisters.

I am aware that some stakeholders have asked that the Scottish Government consider mitigating for that loss of coverage by commissioning an audit across UK acts in devolved areas and acts of the Scottish Parliament. The aim would be to maintain compatibility in devolved areas and to identify UK acts in devolved areas that impact on children’s rights to the extent that it would be worth bringing them into the scope of the compatibility duty by their being converted into new acts of the Scottish Parliament. I reassure them that I will give that proposal due and proper consideration. Any audit would take time to complete, and any legislative change would need to be paced in a way that manages pressure on Parliament’s legislative programme.

Despite their limitations, the proposals set out today will result in a bill that provides valuable protections for children’s rights and does so in a way that is legally sound and is clear for users. That is what we consider will give us the greatest effective coverage for children’s rights, given the legislative landscape within which we operate as a devolved Administration and the implications of the Supreme Court judgment.

It will also allow us to begin our journey to legislate for children’s rights and wider human rights and provide a solid legal foundation on which to build in the future. We believe that the bill and the supports that we are already putting in place for its implementation are creating a wider cultural change that we can continue to foster. However, be in no doubt that that journey would become easier if there was political commitment in Whitehall to legislate for children’s rights.

The simplest way to secure protection for children’s rights in Scotland and across the UK, and to do so as fully as possible, is for the UK Government to incorporate the UNCRC into UK law. The concluding observations from the UK state party’s recent examination by the UN Committee on the Rights of the Child, published this month, include a recommendation that the UNCRC should be incorporated into national legislation across the whole of the UK.

Although Scotland was commended by the committee for its efforts to incorporate the UNCRC into our domestic law, we have learned over the past few years that, without a similar legislative incorporation at the UK level, it is impossible to achieve that to deliver the breadth of protection that our children and young people deserve. I will therefore be writing to the Secretary of State for Scotland to confirm how we will amend the UNCRC bill and to urge the UK Government to bring forward its own legislation to incorporate the UNCRC.

The former Deputy First Minister was open about his attempts to engage with the Secretary of State for Scotland to address the issues with the devolution settlement. It is regrettable that the secretary of state was unwilling to do that. Once again, we find the democratic will of this Parliament being blocked by Westminster. With devolution under attack, we simply cannot afford to leave rights such as those in the UNCRC at the behest of a Tory Government. Surely the fact that we are seeing the UNCRC threatened by the repugnant Illegal Migration Bill is proof enough that the UNCRC bill is essential for protecting children in Scotland. As the First Minister set out last week, with independence, our nation would have the opportunity to right that wrong by incorporating the UNCRC into our written constitution.

In the meantime, I will now make arrangements to begin the process of parliamentary consideration of a revised United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill. The process that is agreed with the parliamentary authorities for the bill means that the next step is to confirm the admissibility of our proposed amendments with them. I will then lodge a motion so that Parliament can confirm its willingness to reconsider the bill. We are confident that our proposals for amending will be within our legislative competence and will deliver a clear, coherent and workable bill that provides valuable protections for the rights of children in Scotland. I look forward to presenting the amendments to Parliament as soon as possible after the summer recess.

The cabinet secretary will now take questions on the issues raised in her statement. I intend to allow around 20 minutes, after which we will need to move on to the next item of business.

We are tight for time this afternoon, so I would appreciate succinct questions and answers wherever possible.

I am becoming increasingly annoyed by the Government and its inability to legislate. It has been 834 days since Parliament passed the UNCRC bill and 630 days since the Supreme Court ruled in favour of the UK Government’s challenge to the bill. That means that the Scottish Government had 630 days to decide whether to write a letter to the UK Government about the UNCRC bill. No wonder nothing gets done in this place.

Instead of making the necessary changes to the bill, the Scottish National Party has deliberately provoked grievance, continued to politicise children’s rights, played constitutional games and prioritised a debate on independence this afternoon. However, the SNP has been found out. If the Government really cared about children’s rights, work would have progressed by now. If this was really about young people, members of the Scottish Parliament would have something to scrutinise today, but it appears that the Scottish Government has done nothing. We still do not know when the bill will come back to Parliament. What on earth has the Government been doing?

Why did the Scottish Government not do its homework before introducing the bill to Parliament? When will the bill finally be brought back to the chamber?

I presume from some of that question that Meghan Gallacher does not understand the reconsideration process and what I said in my statement about how the bill must go through the parliamentary authorities. I am not in charge of that part. In response to the points for which I am responsible, we are determined to bring the bill back to the chamber at the earliest opportunity after the summer recess, once it has passed through the parliamentary authorities, the timetable for which I cannot fix.

When it comes to how we will move forward with the bill, I hope that we will see progress with working through the bill before Christmas. Again, however, the parliamentary process and its timetable are not something for me.

I am becoming increasingly annoyed about our Parliament’s inability to protect children’s rights. That is what annoys me about this process. We have taken the time to look at the bill to see how we can have the maximum protection possible for our children and young people. I appreciate that my statement was quite technical in parts, but I hope that it showed that the ability for us to protect—[Interruption.]

I am sorry that Stephen Kerr thinks that it is funny that we have been working in Parliament to protect children’s rights.

I find your answers funny.

I laid out in my statement how, unfortunately, we have had to take out children’s rights from what was in the bill to ensure that we are within our legislative competence and to respect the Supreme Court’s judgment, which we do.

I ask members to desist from shouting from a sedentary position. It will prolong proceedings and mean that everybody who wants to come in will not have the opportunity to speak.

I welcome the reintroduction of the bill, but today’s announcement does not come without disappointment. The cabinet secretary has been clear that neither the Education (Scotland) Act 1980 nor the Children (Scotland) Act 1995 will be covered by the scope of the bill, which means that the provision of education standards, special needs provisions, local authority duties in relation to looked-after children and a host of other vital areas that children and young people were counting on will not have the protection of incorporation.

That is a damning indictment of 16 wasted years, during which the cabinet secretary led on education. Does the cabinet secretary accept that the SNP Government’s failure to act on its self-proclaimed priority means that we still rely on an outdated piece of Thatcherite legislation that is older than me and that its inaction has led to a betrayal of children and young people?

I am genuinely disappointed by Pam Duncan-Glancy’s question. There is probably very little difference between us on the protection of human rights. The limitations that I discussed in my statement are a result of devolved competence and the Supreme Court judgment. That is why we have had to consider which acts are in scope and which acts cannot be in scope. That is not because the SNP is bad or because we have not been doing anything; it is because of the way that the Scotland Act 1998 has developed.

As I say, I do not think that there is much between Pam Duncan-Glancy and me on how to take forward children’s rights. In an attempt to find some sort of consensus, I look forward to working with her to see how we can have more protection of rights in the Parliament. However, we will not get it within the current devolved settlement.

The fact that the UK Government can block Scottish legislation that advances and furthers the rights of children is a stark illustration of the limitations of our place within the union and the urgency of regaining our independence. Can the minister provide assurance to the thousands of people who contributed to the passing of the original UNCRC bill—many of them children and young people—that, even with the limitations imposed by the UK Government, the Scottish Government remains ambitious for children’s rights and committed to incorporation?

Absolutely. As the First Minister has set out in the policy prospectus, we are absolutely committed to Scotland being the first UK nation to incorporate the UNCRC into domestic law. Despite the limitations, the proposals set out today will result in a bill that provides valuable protection for many children’s rights in a way that is legally sound and clear for users. Although it is disappointing that we cannot do more, I believe that the proposals that I have discussed today will give us the greatest effective coverage for children’s rights, given the legislative landscape that we are in and the implications of the Supreme Court judgment.

Despite what the cabinet secretary says, responsibility for the blockage lies firmly with the Scottish Government and its inability to deliver a modicum of competence in its work. The statement is disappointing because it gives some children rights but lets down other children who are already marginalised. The SNP Government should hang its head in shame. Will the cabinet secretary commit over the summer recess to putting in place an impact assessment of the proposals for the sake of the rights of the children and for all children across Scotland?

I would be more than happy to assist Rachael Hamilton by lodging a publication with the Scottish Parliament information centre that contains a summary of the options for amending the compatibility duty that we have been considering and the impact that it will have on the acts that have to be removed to get to the point where we have a piece of legislation that is effective but will not be threatened by another action in the Supreme Court. I hope that Rachael Hamilton would support the Government’s work to include as much as we possibly can, which is exactly what we have been doing in the past few years.

Like all children, unaccompanied asylum-seeking children should have access to the full care, support and protection of children’s legislation. I am deeply concerned about what the UK Government’s Illegal Migration Bill will mean for vulnerable children and victims of human trafficking who flee to the UK to seek a place of safety. Will the minister provide further detail on any engagement with UK Government lawyers to try to reduce the risk of another referral to the Supreme Court for a revised bill, which would cause further delays—[Interruption.]

I cannot hear the question, Presiding Officer.

Ms Mackay, please resume your seat. Mr Whittle, I have told members about sedentary interventions—you are less likely to get in if you make such interventions. Please continue, Ms Mackay.

Will the minister provide further detail on any engagement with UK Government lawyers to try to reduce the risk of another referral to the Supreme Court for a revised bill, which would cause further delays to the vital protections that incorporation of the UNCRC can provide?

There is a limit to what I can put in the public domain, because engagement with the UK Government has been mainly confidential lawyer-to-lawyer engagement, the details of which, of course, cannot be shared in public. However, within that engagement, we have tried to get as much reassurance as possible that UK Government lawyers are broadly content with our amendments before we proceed to the reconsideration stage, in order to avoid another referral to the Supreme Court.

There is a great deal of discomfort, certainly among Scottish ministers, about where we have ended up, because, as the debate on the Illegal Migration Bill that we had just before this statement showed, there are many vulnerable children—and victims of human trafficking, as Rona Mackay discussed—who will not receive protection because of the settlement that we have and the decision of the Supreme Court, which we will respect. We will work with others to improve the bill to deal with that.

It is right to say that, if a young person—irrespective of where they are in the UK—thinks that their human rights have been breached, they should have vehicles through which to pursue that and should be supported to do that. In essence, the statement—to cut through what is a very complex point—simply said that legislation that is passed in Scotland and is about Scotland would fall under the UNCRC. There has been discussion of reconsideration of the bill’s rejected procedures. It is right that, for parliamentary authorities, the concern is that the new amendments will bring the bill under the auspices of devolved authority. That should be relatively straightforward, now that the Government has had those reassurances—

Question.

Can the cabinet secretary confirm that the bill will be legislatively competent and passed by Christmas this year?

As I said in my statement, we believe that the UNCRC bill is legislatively competent. I certainly hope that it will be passed by Christmas. Of course, decisions about the parliamentary timetable are not for the Government, but, given that our intention is to move as speedily as we can, once the parliamentary authorities have opined on the amendments, we will bring the bill back as soon as possible, and we will work with Parliament to ensure that it goes through Parliament as quickly as possible.

The cabinet secretary has made it obvious that this is an incredibly complicated area of legislation, and she has also made it clear that Westminster basically has a veto over human rights. Does she agree that people in both the UK and Scotland would benefit from a written constitution, so that our rights would be written down, as most sensible democracies’ rights are?

John Mason has raised a very important point. The UNCRC bill, which we will reconsider, is an important landmark bill to protect children’s rights, but there are undoubtedly limitations to that, and the reconsideration stage is all about how we will deal with those limitations. The Government tried to work with the secretary of state, as I said in my statement, to find ways round those limitations, but he refused to do so.

Within the powers that we have, we will do what we can, but John Mason is quite right: the only way that we can protect all our human rights and all the UNCRC is through a written constitution, under independence.

Parliament first considered incorporation of the UNCRC in the foothills of the Children and Young People (Scotland) Bill back in 2012, which was 11 years ago. Many tens of thousands of children will have since attained majority and will be forever denied the protections that the legislation contains.

Given that so much time has passed, will the cabinet secretary instruct legislative drafters to make sure that commencement of the bill will happen when it receives royal assent and is not delayed further?

The bill already has a short commencement period, which is that it will commence no later than six months after royal assent. If we can implement any of the provisions earlier than that, we will, but we need to work with representatives of public authorities, rights holders and the courts so that commencement is done in a logical and realistic way, with access to the necessary guidance being available.

To commence the public authority compatibility duty any earlier than six months after royal assent would be extremely challenging, given the statutory requirement that we allow a period of 12 weeks for consultation on the guidance that will accompany the duties, and given the fact that our consultation cannot begin until the bill receives royal assent.

Alan Miller, who was the founding chair of the Scottish Human Rights Commission has said:

“Scotland’s human rights journey has ... been marked by an increasing ambition and internationalism ... as evidenced in the unanimous vote in the Parliament for the ... UNCRC ... Bill.”

Scotland’s progressive agenda, however, has been stifled by a hostile Tory Government at Westminster.

Will the cabinet secretary outline what discussions she has had with the UK Government to amend the devolution settlement in any way in order to allow us to incorporate the UNCRC better in Scotland?

While I have been responsible for the bill, we have been looking at the amendments that I discussed in my statement. Before I was responsible, ministers were in touch with the UK Government about the issue.

Parliament will be aware, from letters that have been shared with the Equalities, Human Rights and Civil Justice Committee, that we engaged with the UK Government in early 2022 to explore routes through which to increase the effectiveness of incorporation. That engagement covered two areas: whether the devolution settlement might be altered to offer the Scottish Parliament additional routes to increase the effectiveness of incorporation and whether we could ensure that all devolved legislation is quickly brought within the scope of the UNCRC bill without altering the devolution settlement. The Secretary of State for Scotland made it clear that he is unwilling to make changes to the devolution settlement. [Interruption.]

I hear Stephen Kerr saying, “Quite right!” He thinks that it is quite right that we should not change the devolution settlement to protect more children. What a sad indictment of him that is.

I thank the cabinet secretary for advance sight of her statement and for the conversations that we have had about the issue since she came into post. She has outlined the deeply regrettable loss of coverage of rights where the compatibility duty will not apply. What other mechanisms might be open to us to ensure that we extend coverage of rights in practice, if not in law, for all children in Scotland, including those who will be negatively affected by the Illegal Migration Bill?

Members from across Parliament must continue to work on that issue to ensure that we are using our powers and our ability to support children and young people and their human rights.

Maggie Chapman will be aware of the work that has—even while the bill has been held in abeyance—been on-going to support implementation. For example, there is the skills and knowledge framework, the fund to test approaches to embedding children’s rights and the work that is going on to develop tools to assist public bodies in evaluating their approach to children’s rights. Those are just some examples. Maggie Chapman raises the important point that we must continue that work. I would be happy to work with her and with members from across the chamber to see what more can be done on that.

The cabinet secretary should know how fed up the people of Scotland are with the Scottish National Party’s games. The reality is that the idea of opening up the devolution settlement is just another SNP ruse to create grievance.

Will the cabinet secretary tell us what measures the Scottish Government has put in place to monitor and evaluate the effectiveness of its efforts to incorporate the UNCRC into Scots law and what key indicators the Government is using to assess its progress in that area?

I am really sorry that Stephen Kerr thinks that protecting children’s rights is a game. It is not a game, which is exactly why we have been working very hard to try to protect as many rights as possible while we have been going through this process.

As I said to Maggie Chapman, a great deal of implementation work has been going on. We must work with children and young people, their representatives and public bodies to ensure that the Government, public authorities and everyone who is responsible for the children’s rights that will be taken up by the bill are working as effectively and quickly as possible. I gave some detail about that in my answer to Maggie Chapman, but there is more that we must do.

A UN committee has called on UK Government ministers to

“Urgently amend the Illegal Migration Bill to repeal all draft provisions that would have the effect of violating children’s rights under the Convention and the 1951 Refugee Convention, and bring the Bill in line with the State party’s obligations under international human rights law to ensure children’s right to nationality, to seek asylum and to have their best interests taken as a primary consideration, as well as to prevent their prolonged detention and removal”

Does the cabinet secretary share those incredibly serious concerns—in particular, in relation to the importance of UNCRC incorporation?

It is extremely frustrating that our hands are tied in relation to UNCRC incorporation. I whole-heartedly agree with the concerns about the Illegal Migration Bill, which serves as a real-time example of just how urgent and important the UNCRC incorporation bill is in protecting rights.

As I set out to John Mason, an independent Scotland could provide constitutional safeguards for human rights and equality protections, including the rights under the UNCRC. That would mean not only that the UNCRC would have effect in domestic law, but that protection would extend to matters that are currently reserved, as well as those that are devolved, and without the limitations that Westminster has set. I agree with Fulton MacGregor that that would be the best thing for the very vulnerable children who will—unfortunately—be harmed by the Illegal Migration Bill that is going through Westminster.

I ask Daniel Johnson to be very brief.

I will try my best. For campaigners against use of seclusion and restraint, the exclusion of the Education (Scotland) Act 1980 will be a disappointment. Given that the UN Committee on the Rights of the Child said that the guidance on use of restraint and seclusion should be put on a statutory footing, will the Government consider amending the bill to achieve that? Failing that, will the cabinet secretary, or her colleague the Cabinet Secretary for Education and Skills, meet me to discuss my proposal for a member’s bill to achieve that?

I ask the cabinet secretary to respond as briefly as possible.

It is a disappointment that the 1980 act is not included. Daniel Johnson will be well aware that there has been a public consultation on restraint. When I was education secretary, I said that the Government would be happy to see whether more needed to be done on that. It would not be for me to undertake to have such a meeting, but I am sure that my colleague Jenny Gilruth would be delighted to meet the member at some point.

That concludes the statement. There will be a brief pause to allow a change of front-bench members.