Official Report 984KB pdf
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.
15:51
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.
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?
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.
I call Ruth Maguire to speak on behalf of the Equalities and Human Rights Committee.
16:02
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.
16:13
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.
16:21
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.
16:28
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.
16:34
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.”
I was somewhat amused by your “Finally finally”, which a few members use.
16:40
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.
16:46
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.]
Mr Greene must close, so he cannot take an intervention.
Given the genuine cross-party ambition to improve outcomes for all young Scots, let the bill not become one of those bad laws.
16:52
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.
16:59
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.
17:05
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.
17:11
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.
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.
17:17
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.
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?
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.
17:24
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.
I call the Deputy First Minister, John Swinney, to close the debate for the Scottish Government.
17:30
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.
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?
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.
Will the cabinet secretary give way?
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.
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.
I give way to the member.
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.
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.