Chamber and committees

Thank you and good morning, convener.

I am grateful for the committee’s careful consideration of this important bill. As the committee is well aware, the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill was passed unanimously by the Scottish Parliament in 2021, but could not receive royal assent due to its referral to the Supreme Court by the United Kingdom law officers. The Supreme Court judgment has significantly impacted on our ability to legislate for human rights in Scotland, although I stress that we very much respect the Supreme Court’s judgment.

In amending the bill to address the judgment, I tried to balance three considerations: protecting children’s rights to the maximum extent possible; minimising the risk of another Supreme Court referral; and making the law as accessible as possible for users. I reached the conclusion that the maximum effective coverage for children’s rights in the present devolved context is for the compatibility duty to apply only when a public authority is delivering devolved functions that are conferred under acts of the Scottish Parliament or common-law powers, which means that it will not apply when powers are delivered under acts of the United Kingdom Parliament, even in devolved areas.

The duty to read and give effect to legislation in a way that is compatible with the UNCRC requirements, and the power to strike down incompatible legislation or to issue an incompatibility declarator, will apply only in relation to legislation originating from the Scottish Parliament. The Supreme Court judgment means that this Parliament’s power to give the courts remedial powers is limited by the mere fact that existing statutory provision happens to be in an act of the Westminster Parliament, even when such powers concern matters on which the Scottish Parliament could—and frequently does—legislate.

That has resulted in a disappointing loss of coverage for children’s rights compared with what we had originally hoped to achieve. Although we have tried to minimise complexity in the approach that we have taken, the Supreme Court judgment means that the duties will not be straightforward to understand, as we had hoped them to be.

However, the bill will still provide legal protection for children’s rights that is not currently available in Scotland or, indeed, in any other part of the UK. We should also remember that, although the sections of the bill that are impacted by the Supreme Court judgment are powerful provisions, other important provisions in the bill will mean that children’s rights are respected in the first place and will help to ensure that our statute book is fully compliant with the UNCRC requirements.

The bill requires Scottish ministers to set out and report on how they are giving further and better effect to children’s rights regardless of whether the compatibility duty applies, and for listed authorities to prepare and publish similar reports.

The bill also requires the Scottish Government to carry out a child rights and wellbeing impact assessment for decisions “of a strategic nature” and, when it introduces any new Scottish legislation, to make a statement about its compatibility with UNCRC requirements.

The more limited scope of the compatibility duty means that it is even more important to create a lasting cultural change about children’s rights. I am confident that we can deliver that as a result of the more widely spread support that we are putting in place. That includes a model child-friendly complaints process that can be used regardless of whether the compatibility duty applies, and a wide range of support, training and guidance for public authorities on taking a children’s rights approach.

In the context of the current devolution settlement, the most straightforward way to give children and young people the human rights protection that they deserve is for the UK Government to incorporate the UNCRC into UK law. We have an important opportunity to lead by example, by passing the bill.

I very much recognise the points made in evidence that was given last week. My officials and I have been having the same types of discussions with public bodies. As I have said previously, I recognise that the bill is a complex piece of proposed legislation, and it will become more complex if the amendments are passed. Regarding the evidence that was given last week, I assume that the request for detailed sector-specific guidance is a request for us to set out how policy and practice in a particular area need to change to become UNCRC compliant. The evidence from Andrew Tickell was very pertinent in that regard. He described how the UNCRC did not lend itself to a list of rules; it is more a list of principles that need to be interpreted, and that makes sector-specific guidance difficult. It is for the Scottish courts to decide, when cases are brought to them, what constitutes a breach in the context in which services are being delivered.

However, I recognise that we need to support public authorities, and there are a number of ways in which that will be done. There will be non-statutory guidance on taking a children’s human rights approach, which will be available by the end of the year for those involved in public service delivery in Scotland. We are updating external child rights and wellbeing impact assessment templates and the external guidance, and the UNCRC innovation fund is available. By summer 2024 we will have a national child rights, skills and knowledge framework in place, which will provide a single point through which to access new and existing training resources on children’s rights for a wide range of sectors.

There is also the statutory guidance that is contained in the bill. The bill requires Scottish ministers to issue guidance to support public authorities to comply with the compatibility duty and to promote children’s rights and respect in practice. A group has been convened to consider the development of that statutory guidance, and that will include a framework for reviewing compatibility. We cannot consult on that draft guidance until the bill is finalised, but we are keen to move on that at speed afterwards. So, we have some non-statutory guidance, the statutory guidance and some of the work that we are funding—for example, in the Improvement Service—to assist local authorities.

I very much recognise the concern about the complexity as it stands. We are keen to work with COSLA, SWS and others to see what more can be done in that area. It may not be sector-specific guidance, as they talked about, but we recognise the concern and are keen to work with everybody to deal with that.

I think that that question may be from one of the members of the Scottish Youth Parliament that I met last week. Forgive me if it was not but, if there are not two Ellies involved, I think that it was. We talked about that issue last week, which is a really important aspect of the process. We recognise that some acts are in scope and that some are not. At that time, we talked about looking at what is most important for children and young people, and I was keen to pick up on their suggested ways forward. Myriad acts will be outwith scope and we have to think about how we best take the work forward and what the priorities for children and young people are. If we are looking at moving acts into Scottish parliamentary debate and therefore within scope, that will not in any way involve a short time period.

As I said last week, we will continue with our suggestion that we work together to look at where, for example, there is a potential for greater inequalities to arise if we have some acts that are outwith scope, and at where the priorities are for children and young people. We are keen to start the work in that area. I am sure that we might get on to further questions about audits and so on in due course, but, as part of that work, we need to involve children and young people right from the start and find out what their priorities are, because that will take some time—and much longer still after that to then implement. I am keen to work on their priorities and to put them at the front and centre of what we are doing.

As I mentioned to Mr O’Kane, decisions on future funding will be a matter for the budget process as we go forward, and I look forward to the committee and, indeed, all political parties coming forward with suggestions—preferably costed—to see whether we can move on this area as well as on others.

However, the question, again, highlights a very important point. I will not repeat myself, convener, as I think that I touched on some of this in my answers to Mr O’Kane, but it points to recognition of the fact that, just because the act has been passed, that does not mean that this is all over. When I met the members of the Scottish Youth Parliament last week, it was explained to me that this is, in many ways, only the beginning—although it might not feel like that to some of us who have been around this process for some time. We are keen to look at the range of support that is in place to ensure that it is working effectively, and we are also keen to work with children, young people and public bodies to ensure that we are looking at what more needs to be done.

I have already mentioned the UNCRC implementation programme. Clearly it will need to continue as the provisions in the bill are commenced—I hope, next year—and we will continue to work with public bodies, children, young people and their representatives to build on the comprehensive support that has already been provided, for example, through the rights-respecting schools awards, the funding for Clan Childlaw and the funding for the Improvement Service.

We have recognised that putting the bill into practice once it becomes an act is important. A piece of legislation is just that: it is a piece of legislation. How we support children and young people and public bodies so that it becomes genuinely meaningful is the important part.

In my previous answer, I talked through some of the funding work that is already in place to support that. Obviously, work on implementation will need to continue once the bill becomes an act, if Parliament sees fit to pass the amendments. We are very clear that that work will have to continue.

Budget discussions will take place as part of the normal discussions that we do in relation to the budget, but we are keen to work with local authorities and other public bodies to ensure that we get the maximum effect out of the bill and that it is genuinely meaningful once it becomes an act. I recognise that that work does not stop if and when the bill is passed.

The issue is a consequence of the bill’s referral to the Supreme Court. For clarification, I should say to the committee that I intend to lodge an amendment to change the reporting dates so that listed authorities have clarity on the timing of their duties. It is, of course, for the Presiding Officer to determine whether such an amendment is admissible under standing orders for a reconsideration stage, which is not something that the Parliament has gone through before. It is certainly my intention to lodge that amendment, though, and it will then be for the Presiding Officer to take a view on it.

I absolutely appreciate that children and young people in particular want us to just get on with it, as we were told at the Cabinet takeover, and I have kept that in my head as we have been considering the situation, trying to ensure the maximum coverage in such a way that the bill is a piece of living and breathing legislation that will make a difference to children and young people. There has been frustration within Government that we have not been able to move faster, and I know that that is very much felt by children and young people and their representatives, too. I still think that it was important to take the time to consider those matters, and the work between the Governments at lawyer-to-lawyer level took time, but I certainly felt that it was important to get the maximum coverage possible.

There has been frustration. To mitigate some of that, we have tried to ensure that we are involving children and young people, their representatives and others as we have looked at the options that have come through. Clearly, we cannot go into the legal advice that we receive within the Scottish Government or the lawyer-to-lawyer discussions that have happened between the two Governments, but we take the conclusions of those and we have been trying to discuss them with stakeholders as the situation has progressed, to keep them up to speed.

We have also continued to work on the implementation, because not everything had to wait for the bill to be passed for us to consider what more we could do in the education field to ensure that children have a much greater understanding of their rights.

I do not know whether members have had the opportunity, either as constituency members or with the committee, to visit their local schools and talk to children and young people about their understanding of their rights and how they can take that forward. Certainly, one of the most inspirational parts of my time as Cabinet Secretary for Education and Skills and in my current post has been listening to children and young people express with passion—as well as a wee bit of frustration—what the bill can and should mean for them. I thank all children and young people for their patience as we have gone through the process, but also for their work in, I hope, our getting the bill as right as it can be under the settlement that we have.

I will first deal with the example of the Government avoiding making amendments to UK acts. Clearly, there will be an impact on what the Government thinks about as it plans legislation in the future. When we are deciding whether a change of law should be expressed as a freestanding provision or as an amendment, we look at parliamentary resource implications and accessibility to law. In the future, the Government will consider the implications of such decisions on UNCRC scope—that will be built into how we look at things.

Of course, bills will go through Parliament that measures could be attached to. Ministers are open to doing that, but we need to be careful, so I will not give an overall commitment to that, because it is important that we look at issues on a case-by-case basis. For example, we need to consider what provisions would benefit from being in an act of the Scottish Parliament, what would happen to the scope and timetable for a bill if it was already progressing and what level of consultation would have to be undertaken if we were to put something into a bill as it goes through. Would that delay a bill? Would members feel that it was a reasonable way forward if the measure was not in the bill at stage 1 and evidence had not been taken on it, for example? People might have concerns if we do not consult properly.

We need to look at issues on a case-by-case basis. It is an interesting proposal, but we will need to consider the issues each time that we look at such provisions. My encouragement to stakeholders and others is that, if they feel that there is an opportunity, they should absolutely reach out to officials and the ministers responsible for those bills to see what can be done and to have that conversation. Clearly, it is not as simple as lifting something from a UK act and putting it somewhere else, because Government and Opposition members may want to change, update and modernise the law.

We therefore need to be mindful of that. We are certainly not closing down the idea, but we will need to look at the issues on a case-by-case basis.

Dr Tickell raised a very important point. The human rights bill, which has been consulted on, is already some of the most complex legislation that the Parliament will have had to consider since being reconvened. Therefore, we absolutely have to learn lessons from the UNCRC bill about its scope and how we deal with it. We also have to learn lessons about the difficulty that comes with such complexity.

Stakeholders will wish to have many things in the human rights bill, and my ask all along, as we have gone through the consultation for the bill, has been that if stakeholders do not think that we have gone about things in the right way, they should be encouraged to come forward with alternative proposals. They should not just say that they would like something to be in the bill or that they would like something to be done differently; we genuinely want to know how we can work together within the devolved settlement.

The UNCRC bill has been an example of the limitations of the devolved settlement and of the willingness of the UK Government to seek Supreme Court judgments, et cetera. We need to be very cautious about that, because I do not want to get into the same position with the human rights bill, which I think is even more complex legislation than the UNCRC bill.

To say that the human rights bill is complicated is an understatement, and the conversations that we are having in relation to the UNCRC bill throw into sharp focus some of the discussions that we will inevitably come back to as part of the human rights bill—particularly when stakeholders ask us to go further when the Government or others might have concerns about scope and legislative competence.

I would be very concerned if public authorities stopped taking a children’s rights approach when delivering their duties just because they are not in scope of the compatibility duty. As I said in my opening remarks, a real desire has been expressed by the Parliament and, more importantly, by children and young people for that approach to be taken regardless of whether the legal compatibility duty comes into effect.

Regardless of the scope of the legal duties in the bill, UNCRC is already at the heart of getting it right for every child, as the convener will be well aware, and it is important that we consider that in its entirety. We are keen to work with local authorities to take a children’s human rights approach in the delivery of their services, regardless of the source of their powers. I know that children and young people want us to do that as legislators, and it is important that our services are delivered in that way. We were speaking earlier about the funding that is in place, and we should not differentiate here: it should not be a matter of just taking that approach when the legal compatibility duty arises while somehow leaving aside the rights of children and young people, as if they are lesser rights, when they are impacted by a UK act, for example.

We are keen to work with public bodies to ensure that we are still considering that approach in the round, regardless of the legal compatibility duty, because it is the right thing to do. As I stressed in my opening remarks, although we are disappointed about the changes that we have had to make, there is still a lot in the bill that requires that wider look to be taken, rather than just considering whether something will end up in court.