What is the Bill?
The United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill was introduced by the Deputy First Minister and Cabinet Secretary for Education and Skills John Swinney MSP, on 1 September 2020.
The main purpose of the Bill is to incorporate the UN Convention on the Rights of the Child (UNCRC) and the two optional protocols into Scots law.
The UNCRC is an international treaty setting out the rights that children and young people are entitled to.
As it is an international treaty, the UNCRC doesn’t give individuals legal rights in UK courts. The Bill changes this by incorporating these rights into Scots law. This means that public authorities, including Scottish Ministers, will be legally obliged to respect children’s rights, and that individuals will be able to challenge public authorities in the courts for breaches of their rights.
The SPICe Briefing on the Bill provides more detail on the Bill as introduced.
If the Bill passes, Scotland will be the first nation in the UK to incorporate the UNCRC into domestic law.
The Equalities and Human Rights Committee was lead committee for parliamentary consideration of the Bill. The Committee recommended that the general principles of the Bill be approved in its stage 1 report, on 20 December 2020.
The Scottish Government provided a written response to the stage 1 report on 15 January 2021.
The Bill completed stage 1 with the stage 1 debate on 19 January 2021. The general principles of the Bill were agreed to unanimously.
Stage 2 took place on 11 February 2021.
What happened at Stage 2?
The Committee’s stage 1 report highlighted a number of areas where the Bill could be strengthened. These were addressed by some of the amendments at stage 2.
Interpretation of UNCRC requirements
Section 4 of the Bill sets out that a court or tribunal ‘may’ take into account the texts of the UNCRC and the two optional protocols that have not been incorporated. This is because some of the UNCRC text, for example, the preamble, is not included in the Bill’s schedule. The Committee recommended in their stage 1 report that this was changed to ‘must’.
The Committee also recommended that Section 4 was amended so that courts and tribunals ‘may’ look at a range of other UN materials. For example, treaty body decisions, general comments, and concluding observations.
Alison Harris lodged an amendment (2) requiring that courts and tribunals ‘must’ take into account the whole of the text of the UNCRC and the two optional protocols when they are determining a case. This was agreed by division (For 4, Against 3, Abstentions 0).
The Scottish Government’s amendment (7) added additional materials for courts and tribunals to take account of, when determining a question in connection with the UNCRC requirements. This was agreed without division.
Meaning of public authority
The definition of a public authority is based on the definition set out in the Human Rights Act 1998. The Committee heard that this is being interpreted by the courts in a way that would be contrary to the spirit of the Bill (for example, where public functions are outsourced to private companies). The Committee recommended in the stage 1 report that the Scottish Government consider how to tighten up the definition.
Mary Fee lodged an amendment (52) that defines a public authority as “all public bodies who have functions in relation to the care of a child”. Maree Todd, Minister for Childcare and Early Years, on behalf of the Scottish Government, argued that this was unnecessary as this is already achieved by the existing definition of public authority. Mary Fee’s amendment was agreed to by division (For 4, Against 3, Abstentions 0).
The Scottish Government lodged an amendment (9) to ensure that anyone undertaking a function under a contract, or other arrangements, with a public authority will have a duty not to act incompatibly with UNCRC requirements. The Minister provided examples of publicly funded early learning/childcare and independent and grant-aided schools. This was agreed to without division.
It was not clear to the Committee, as stated in its stage 1 report, that the Bill does enough to ensure that the remedies that can be provided by courts and tribunals will be effective in practice. For example, will the remedies focus on what a child or young person might want, or tell public authorities to make changes for the benefit of other rights holders in future?
The Committee recommended amendments to define and ensure an effective remedy, and to require courts and tribunals to ask for the child’s views on an effective remedy in each case.
Alexander Stewart’s amendment (14) ensures that any relief or remedy granted by the court or tribunal must be ‘effective’. This was agreed to without division.
The Scottish Government amendment (18) ensures that where a court or tribunal is considering what remedy to grant, the child is given the opportunity to express their views in relation to the effectiveness of that remedy. Furthermore, the court must then have regard to any views the child expresses on this topic (taking into account the child’s age and maturity). This amendment was agreed to without division.
Guidance to public authorities
Mary Fee lodged an amendment (53) that would require public authorities to have regard to any guidance issued by Scottish Ministers. The Minister was supportive of the amendment in principle but was concerned that it would introduce uncertainty about the responsibilities of public authorities.
The amendment was withdrawn to allow an alternative to be lodged at Stage 3.
Power for SHRC to bring or intervene in court proceedings
The Bill gives the Children and Young People’s Commissioner Scotland the power to bring court proceedings or to intervene in existing court proceedings where a public authority is alleged to have acted in a way which is incompatible with UNCRC requirements.
The Scottish Government brought forward several amendments to give the Scottish Human Rights Commission the same powers as the Children and Young People’s Commissioner Scotland. These were agreed to without division.
Children’s Rights Scheme
The Bill requires Scottish Ministers to publish a Children’s Rights Scheme (the Scheme) to report on compliance with the UNCRC requirements. The Committee heard calls for the provisions in the Scheme to be strengthened.
While the Bill as introduced stated that the Scheme “may” include certain arrangements around children’s rights, stakeholders called for this to be changed to “must”. An amendment (22) from Alexander Stewart making this change was agreed to without division.
There were also calls for additional content in the Scheme to be included on the face of the Bill. Amendments were lodged by Mary Fee to include children who have protected characteristics and vulnerable groups; and by the Minister to include child friendly complaints handling procedures, and to prepare and publish child rights and wellbeing impact assessments. These were agreed to without division.
Participation and child friendly reports
The Bill requires various reports to be published, such as the Scheme. The Committee heard that for children to participate, reports need to be available in child friendly language.
Gillian Martin lodged amendments requiring these reports to be published in child friendly formats. These were agreed to without division.
Children’s Rights and Wellbeing Impact Assessments
Scottish Government amendments requiring the publication of Children’s Rights and Wellbeing Impact Assessments were agreed to without division. This followed concerns at stage 1 around proposed Ministerial discretion in carrying out these assessments.
Reporting duties of listed authorities
The Bill requires listed public authorities to publish a report every three years on actions taken to ensure compliance with UNCRC requirements. This replaces existing duties in the Children and Young People (Scotland) Act 2014. The Committee recommended that the Bill be amended to include future actions which public authorities have identified for the coming three-year reporting period.
The Scottish Government lodged amendments so that, at the end of each three-year reporting period, public authorities publish a report that includes their plans to meet UNCRC requirements and the steps they will take to realise children’s rights. These were agreed to without division.
A key issue for many stakeholders was the lack of a commencement date in the Bill. The main provision in the Bill enabled Scottish Ministers to set the commencement date by regulation.
The Committee’s stage 1 report recommended that the Bill commences six months after Royal Assent.
The Scottish Government lodged an amendment (46) to make the Bill commence 12 months after Royal Assent. Alex Cole-Hamilton lodged an amendment (1) to make the Bill commence six months after Royal Assent.
The Scottish Government argued that public authorities need time to prepare to get the implementation right. Alex Cole-Hamilton argued that public authorities were already prepared as they already have UNCRC reporting duties under the Children and Young People (Scotland) Act 2014.
The Minister said: “We are, however, ready and willing to work with the timetable that the Parliament decrees”.
The Committee agreed Alex Cole-Hamilton’s amendment (1), by division (For 4, Against 3, Abstentions 0).
Stage 3 will take place on 16 March 2021.
Nicki Georghiou, Senior Researcher, Justice and Social Affairs Research Unit