Delegated Powers and Law Reform Committee
At its meeting on 9 March 2021, the Delegated Powers and Law Reform Committee considered the delegated powers in the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill (“the Bill”) as amended at Stage 2.i
The Committee submits this report to the Parliament under Rule 9.7.9 of Standing Orders.
The Bill completed Stage 2 on 11 February 2021.
This Scottish Government Bill was introduced by the Deputy First Minister and Cabinet Secretary for Education and Skills, John Swinney MSP, on 1 September 2020. The lead Committee is the Equalities and Human Rights Committee.
The Bill incorporates the United Nations Convention on the Rights of the Child ('UNCRC') into Scots law. The UNCRC is an international human rights treaty that covers all aspects of children’s lives. It encompasses civil, political, economic and cultural rights.
The Bill provides for rights and obligations derived from the Convention, and its first 2 optional protocols, to be given effect in Scots law in the following ways: -
it places public authorities under a duty not to act incompatibly with “the UNCRC requirements” (as defined in section 1), and provides legal remedies should they fail to do so (Part 2);
it places the Scottish Ministers under a duty to produce, and periodically report against, a scheme setting out what it is doing to comply with its duty in relation to the UNCRC requirements, and places a duty on certain other public authorities to produce periodic reports on their compliance with those requirements (Part 3);
it obliges the Scottish Ministers, when bringing forward any new legislation, to make a statement about its compatibility with the UNCRC requirements (Part 4, section 18);
it requires that legislation (old and new) be read wherever possible in a way that is compatible with the UNCRC requirements and, where a compatible reading is not possible, it allows the courts to strike down such incompatible legislation or make a declaration of its incompatibility (Part 4, sections 19 to 21); and
it enables the Scottish Ministers to change the law, by regulations, to cure incompatibilities (or possible incompatibilities) with the UNCRC requirements (Part 6).
The Committee considered the delegated powers in this Bill at Stage 1 at its meeting on 8 December 2020. It reported that it was content with the delegated powers provisions contained in the Bill and published its Stage 1 Report on it on 2 December 2020.
The Scottish Government has revised the Delegated Powers Memorandum which this Committee considered at Stage 1, to reflect the amendments made to the Bill at Stage 2.ii Minor adjustments have been made to four of the seven delegated powers in the Bill.
The Committee considered the revised delegated powers:
Section 3 – Power to modify the schedule;
Section 7(5) – Power to add to the powers of a tribunal to ensure an appropriate remedy;
Section 32(1) – Power to make remedial regulations; and
Section 40(2) – Commencement.
The Committee is content with the revised delegated powers provisions contained in the Bill and with the choice of procedure applicable in each case.