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Chamber and committees

Equalities, Human Rights and Civil Justice Committee

Meeting date: Tuesday, November 7, 2023


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

The Convener

We now move to our fourth agenda item, which is our final evidence session on the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill at reconsideration stage. I welcome to the meeting Shirley-Anne Somerville, who is the Cabinet Secretary for Social Justice, and her officials. Liz Levy is unit head of children’s rights and the bill lead, Shona Spence is from the bill team and Rachel Nicholson—who is joining us remotely online, and has just popped up in front of me—is a lawyer in the Scottish Government’s legal directorate. Welcome, and thanks to you all.

I also welcome Martin Whitfield, who has joined us for this evidence session. I will, depending on the time, allow Martin to ask questions.

I refer members to papers 4 and 5, and I invite the cabinet secretary to make an opening statement.

The Cabinet Secretary for Social Justice (Shirley-Anne Somerville)

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.

The Convener

Thank you very much, cabinet secretary, for that detailed and informative opening statement.

The cabinet secretary will be aware of how keen I am to engage with young people and to represent their voices as often as I can. My first question is not my own. It is from Arden, a member of the Children’s Parliament, who says:

“I would love to ask how the Bill will change things for children and if children are going to help implement the Bill and be consulted on.”

Shirley-Anne Somerville

Thank you, convener, and I thank Arden for the question.

Now that we have gone through the bill process, and as we look forward to what will come next, after it is passed—as, I hope, it will be—it is important to ensure that children and young people remain very much at the heart of everything that we do. It is also important that we remain focused on the dialogue that we are already having with children and young people, and that we keep it going. For example, one of my most recent meetings on the subject was with two members of the Scottish Youth Parliament—not the Children’s Parliament, where Arden is—to talk about the issues that are in the bill and, importantly, about the steps that will happen next.

We need to ensure that we give children and young people much greater awareness of their rights, and we currently have a number of funding streams to ensure that that is happening. As I said in my opening remarks, that will, we hope, help Arden and others to look not just at where we have had to change the legislation at the reconsideration stage regarding the compatibility duty but, more widely, at their rights and how to ensure that those rights are being respected and observed.

A great deal of work has gone on and will continue. I and other cabinet secretaries and ministers meet Children’s Parliament and Scottish Youth Parliament representatives, and we have the Cabinet takeover as well. For a number of years, the UNCRC has been one of the issues that they have spoken about. It is for them to decide on the topics that they address, but I would be surprised if that discussion does not continue.

We move to questions from my colleague Meghan Gallacher.

Meghan Gallacher

Good morning, cabinet secretary and others on the panel.

Last week, the committee heard from witnesses that they felt some frustration about the fact that it has taken more than two years for the amendments to come back to Parliament and for discussions on the UNCRC to restart. Why did it take that length of time to bring the bill back for reconsideration? What processes took place during that time, before the amendments were lodged?

Shirley-Anne Somerville

Looking into the matter has been a complex process. One of the reasons for that—as I also said in my opening remarks—was very much our wish and desire to ensure that we still had the maximum coverage possible.

That is why we looked at a number of avenues to see the different ways in which the bill could be amended. Those provided, for example, further coverage, but increased the level of complexity in the bill, which—as the committee heard—was a concern. We tried very much to hold to the intentions of the original bill that was passed in order to seek as much coverage as possible.

During the intervening period, there has been careful line-by-line scrutiny in the Scottish Government of the Supreme Court judgment. There has been a great deal of engagement with the UK Government, which initially included engagement with the Secretary of State for Scotland, to see whether there was any willingness to do this in another way—for example, to change the devolution settlement to allow the bill to remain as it was originally passed—but the Secretary of State was not willing to consider that.

We have had a number of periods of stakeholder engagement in which we went through the options that we could provide. The drafting element then came in. There has been very close working about the specifics at lawyer-to-lawyer level, with the Office of the Advocate General, because we were keen to get as much assurance as possible that what we were doing would provide the maximum coverage but would not carry the risk of another Supreme Court referral.

Once I had taken a policy decision on where we wanted to go with the different options that were available, those were tested with stakeholders, and the detailed amendments were shared with the Office of the Advocate General. The two Governments were doing that important work at lawyer-to-lawyer level, because I wanted the bill to have the maximum impact while also reducing the risk of another Supreme Court referral.

I hope that I have talked the committee through the process, but I am happy to go into further detail on any of the steps, if the committee would find that useful.

Cabinet secretary, would you like to bring in Rachel Nicholson at this point? She has indicated that she might wish to speak, but it is up to you.


Rachel Nicholson (Scottish Government)

I want to come in on the first question, to point out that there are a number of provisions in the bill that will allow for children to be consulted on a statutory basis, when the bill is passed. Those provisions are in relation to the children’s rights scheme, to guidance and to reporting. I add that to answer the first question about how children will be involved in development of the bill and the provisions when they come into law.


The cabinet secretary has covered the question about what was happening during the two years following the judgment. Ultimately, we had to look at the finding of the Supreme Court judgment that focused on section 28(7) of the Scotland Act 1998, which states:

“This section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland.”

We had to look at that not only in the sense that it is an affirmation of the doctrine of the sovereignty of the UK Parliament, but in the sense that it seems to impose a limit on devolved competence. It was very important to work out the exact detail and implications of that so that we could try to retain as much coverage as possible. As the cabinet secretary has touched on, the further we try to go in terms of coverage, the more complexity becomes layered into the different drafting iterations that we develop.

Thank you, Rachel. I move straight to Fulton MacGregor.

Fulton MacGregor

Good morning, cabinet secretary and officials.

Cabinet secretary, the committee has already heard, in written evidence and in the oral evidence taken last week, a lot of support for the approach that you have taken, as it aims to minimise the risk of referral to the Supreme Court, as you have said. However, in your letter, you indicated that there was the potential to have gone further. Can you elaborate on that and on why, in the end, you chose to keep the approach that has been outlined?

Shirley-Anne Somerville

We explored what could be done to achieve more coverage for UK acts in devolved areas within the compatibility duty. One example of how we sought to do that was by looking at an approach that would have differentiated between existing and future acts in devolved areas, so that, for example, the compatibility duty would have applied to existing, but not future, legislation.

We also tried to identify ways in which future acts in devolved areas could be included by adding in a regulation-making power under which Scottish ministers could, with the approval of Parliament, extend the compatibility duty to devolved functions that are created under UK acts in the future, even if that were to be done on a case-by-case basis. The reason why we chose not to do that goes back to the complexity that the bill would then have had. It is already a complex piece of legislation, but it will be more complex if those amendments are passed and the bill becomes an act.

When we looked at the complexity issue alongside our assessment of the risk of another referral to the Supreme Court, we, as a Government, came to the view that greater coverage would, in effect, make the provisions too complex for users. We did some testing within the Scottish Government and realised that we were in danger of producing legislation that would be too complex to use, whether by children and young people, their representatives or the public bodies.

We also considered that compatibility could have applied when public authorities are delivering their duties under powers that are conferred by amendments to UK acts that are made by acts of the Scottish Parliament. We do not feel that there is a legislative competence barrier to doing that but, again, the provisions that would come from that would be extremely complex. That balance of the risk of complexity in coverage, and the risk of a Supreme Court referral led me to take the decision that I have taken.

Fulton MacGregor

Thank you for that very full answer. Building on that, as I said earlier, the approach that you have taken seems to have widespread support in the sector, particularly from children’s organisations, many of which we heard from last week. That support is based, I think, on a real feeling in the sector that there is no alternative way to achieve incorporation at this point, given the Supreme Court’s decision. Do you agree with that? Were there any realistic alternatives?

Shirley-Anne Somerville

When the Supreme Court judgment came through, the Scottish Government asked the Secretary of State for Scotland to look into whether the current devolution set-up could be changed to allow the bill to proceed, as the Parliament had voted for. That would have been an alternative, but the Secretary of State for Scotland was not willing to consider it. On that basis, we needed to adapt the bill. That was clearly disappointing, but that was the state of play, so we are where we are.

The other obvious way to achieve greater UNCRC incorporation is, of course, for the UK Government to do what we are doing within our limited powers, and put the UNCRC on the UK statute book.

Those are two alternatives, but they were not open to the Scottish Government; they needed the UK Government to take action.

Paul O’Kane

Good morning. I am keen to understand some of the issues around the complexities and concerns that have been raised with us by the Convention of Scottish Local Authorities, Social Work Scotland and others. Social Work Scotland described the amendments as “potentially impossible” to navigate in this landscape. There have been calls from front-line workers, who will have to interpret and work through the legislation, for sector-specific guidance. First, what work is being done on guidance in general, as outlined in the bill? Secondly, is the cabinet secretary open to the development of sector-specific guidance for practitioners?

Shirley-Anne Somerville

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.

Paul O’Kane

I welcome the cabinet secretary’s undertaking to do that further work.

Does she also recognise the concerns that have been raised around general resourcing challenges and how the work will involve a demand on capacity and resources that are already stretched, particularly coming back to the point about front-line practitioners? What discussions is she having with ministerial colleagues around future budget planning and the need for increased capacity?

Shirley-Anne Somerville

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.

Maggie Chapman

Good morning; thank you for being here. I have a few questions on a couple of different areas, but I also want to give voice to one of the young people who has been involved in discussions around the bill. This question comes from Ellie, who is a member of the Scottish Youth Parliament:

“If the Scottish Government are going to be working out what laws are and aren’t within scope of the bill, then thinking about, over time, bringing some laws into scope, how will they be involving children and young people from the very beginning in ensuring they prioritise the most important laws?”

Shirley-Anne Somerville

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.


Maggie Chapman

I hear—and welcome—your clear intention to continue to keep young people involved in the process.

Linked to that is an issue with the three-year implementation programme, which has been talked about and on which some work has already started. Last week, we heard clearly from Together (Scottish Alliance for Children’s Rights) and others that the implementation programme should continue to help with the development of resources for children, their families and others to help them understand their rights and grow their understanding and literacy in this area. There is also the important issue of funding and capacity building to increase the number of specialist children’s lawyers. Is that something that you are considering? Can you, at this stage, commit to supporting the continuation of the implementation programme?

Shirley-Anne Somerville

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.

Maggie Chapman

I heard your earlier responses to Paul O’Kane. However, this is about not just funding but using the funding that has already been or will be allocated in the most effective ways and ensuring that young people’s voices are part of the discussions around that. I have had reassurance from you in that respect.

My third question is on reporting periods. Section 15 sets out the reporting duties of listed authorities and the timings of reporting cycles. The first period indicated in the bill ended on 31 March 2023, which has obviously been and gone. I note that none of the amendments that you have submitted deals with that issue. Would you be supportive of a mechanism to fix things in later stages, and do you intend to lodge an amendment to that end?

Shirley-Anne Somerville

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.

Thank you. I will leave it there for now, convener.

The Convener

I might pick up on the consequences of the referral and things that have had to be missed as a result, but I have another question to ask. It has been suggested that duty bearers should act compatibly with the UNCRC requirements, regardless of the bill. However, some have highlighted a risk in, say, local authorities complying only with the areas that are open to litigation. How are you going to address those concerns?

Shirley-Anne Somerville

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.

The Convener

In an earlier answer you referred to the consequences of the referral of the bill to the Supreme Court. Apologies for taking you back a little bit, but I wanted to ensure that you had every opportunity to put any other consequences on the record.

We have talked about coverage and the delay, but we also heard last week from young people who understand somewhat the delay in getting it right. They have waited this long, so they are generally supportive. Are there frustrations that you would like to share with us just now? How have those frustrations been mitigated with regard to the amendments?

Shirley-Anne Somerville

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.

Thank you. I will move on to Karen Adam.

Karen Adam

Good morning, cabinet secretary and officials. On that point, on Friday, I had 19 primary school children in my constituency office, and it was inspiring. We should listen more to the clarity of children’s words.

Some witnesses have suggested that, over time, more legislation could be brought within the scope of the UNCRC legislation. They have suggested ways to achieve that, such as applying UNCRC requirements to future bills, such as the Promise bill, and committing to minimising future Scottish Parliament amendments to United Kingdom acts. What is the Scottish Government’s long-term plan on UNCRC incorporation, given the narrower scope that it now has?

Shirley-Anne Somerville

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.

Karen Adam

Staying on the theme of incorporation, I am sure that you are aware that the Scottish Government plans to introduce a human rights bill incorporating four international human rights treaties into Scots law. One witness, Dr Tickell, said that the difficulties facing the UNCRC bill apply “just as powerfully” to further incorporation. What is the Scottish Government doing to prepare for that? Is it considering what would be in scope and what the impact would be on the ability to ensure that that bill includes provision for enforcement?


Shirley-Anne Somerville

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.

The Convener

I am going to ask a question about having an audit or review, which I think loosely fits in here. We have heard calls from witnesses for a legislative audit or review. What can you tell the committee about your response to those calls? Are you considering a review of what legislation is incompatible? Have you committed to undertaking that work? What would it involve and could it have unintended consequences? I know that COSLA has made a suggestion and that Together has offered a model.

Shirley-Anne Somerville

The question has been an interesting part of the discussions that we have had with stakeholders as we have prepared for the reconsideration stage. It is not only about the amendments but about how we deal with the implications of the bill as it stands.

The UNCRC strategic implementation board was informed at its last meeting that I have asked officials to commission a review of UK acts in devolved areas. I make it clear that that review is not to identify whole UK acts that would be worth converting into Scottish Parliament acts but to identify provisions in UK acts that could be converted.

As the committee is well aware from its own discussions on legislation, an entire UK act could have hundreds of provisions in it. The Scottish Government might wish to amend such legislation, as might the Scottish Parliament—I am sure that members might wish to make amendments. That will take time to go through the parliamentary process. As I mentioned in my answer to Maggie Chapman, we are also keen to look at the priorities of children and young people as we consider the audit.

I have already made a commitment to such work. At this point, I cannot give a timescale for it, because we need to scope out exactly what it will entail, but I am keen to get it initiated as soon as is practically possible. As I said, it is very important to involve children, young people and others who are impacted in how we can generate findings in a phased way and how we can take them forward.

We are keen to see what the Government can do to respond to requests in relation to an audit and to see how we can work together with stakeholders on how we do that, which is also important.

We would welcome being kept informed about that. When you are in a position to issue timescales, please write to the committee and let us know.

Annie Wells

Good morning, cabinet secretary and officials. The committee has heard repeated calls to get the messaging right on the bill and to ensure that it is fully explained to not only rights holders but duty bearers. What plans does the Scottish Government have in place to do that?

Shirley-Anne Somerville

On 18 October, I wrote an open letter to children and young people to provide an update on the bill, which explained why we are seeking to amend it and how it will apply to them. We are also keen to continue our work on communicating directly with children and young people and, obviously, with stakeholders. We have touched on communicating and working with stakeholders in previous responses but, if Ms Wells would like further information on that, my officials and I can go into it in further detail.

There is a real need for us to work with children and young people and ensure that any communication is child friendly—that is very important. That is one reason why we have the rights-respecting schools award, which is available to all state schools in Scotland. We also have a communications group that is helping us to develop our approach. We have, for example, Young Scot working on a social media campaign for young people, and we are grant funding the Children’s Parliament to help raise awareness of children’s rights among children and young people. We also have a guide for parents, carers and family members that will be updated when, with the will of Parliament, the bill is passed and, as I mentioned, there is the Clan Childlaw funding. The Children and Young People’s Commissioner Scotland will play a central role, too, but it will be very much up to the commissioner to decide how to take that forward.

Thank you. In response to Mr O’Kane, the cabinet secretary has already answered some of the questions that I was going to ask, so I will leave it there.

Mr Whitfield, I see you and I am ahead of you. I give you the opportunity to come in.

Martin Whitfield (South Scotland) (Lab)

I am grateful for the invitation to this meeting, convener.

It is still morning, cabinet secretary, so I wish you a good morning. I will pick up a couple of small points for clarification. You talked about the UNCRC as one of the issues to be considered with regard to ensuring the compliance of legislation going forward, but you could not give the same reassurance with regard to legislation that is going through at the moment. In some cases, you have already reached out to third parties for discussions; I am thinking of, for example, the Promise bill. Are you envisaging a specific date after which all legislation will have to undergo UNCRC consideration, or do you expect to have an individual discussion on every piece of legislation that is introduced?

Shirley-Anne Somerville

Once the bill becomes an act, the process will become more legalised. Even without the bill being passed, we are taking it into consideration in legislation that we are working through at this stage, to ensure that things are UNCRC compliant. Other members might wish to amend bills in various ways—that is not an issue for the Government—but this is certainly something that the Government is already looking at. The bill brings it into legal focus.

I am grateful for that response.

The Convener

We are coming to the end of the session, but I have a final question that relates to evidence that we took last week from the police. You just talked about the bill moving to being an act; I think that there is a period of six months for its enactment, but the police expressed concern about the practical implications and, in particular, whether there was going to be a cliff edge or some longer phasing in of the provisions. They gave the example of custody suites for children and said that a complete reconfiguration of their custody facilities will be required to keep children separate from adults. That will take a bit of time, and I suppose that the police are looking for reassurance that, after the six-month period, on day 1 of the legislation coming into force, they will not be in breach straight away. What support and guidance will be available in that respect?

Shirley-Anne Somerville

The timetable for the bill is up to the Parliament but, if it is passed by the end of the year, it will commence by mid-2024. By then, public authorities will have had an extra two and a half years to get ready for the compatibility duty, during which time they will have had access to a growing range of national training and support.

I hope that the six-month commencement date is not unreasonable, but it is important that we continue to work with public bodies to ensure that we support them in the process and that we look carefully at their concerns and any implications that there might be.

When the bill was introduced, it did not have a commencement date but, if my memory serves me correctly, I think that it was included at stage 2. It is unlikely that we will be able to amend the commencement date at reconsideration stage, as it is not something directly to do with the Supreme Court judgment, which is what the amendments are all about.

Again, it is up to the Presiding Officer to decide the issue. However, the date is already in the bill, and the parts of the legislation that we are not seeking to amend as a result of the Supreme Court judgment will stand.

The Convener

That was helpful. The bill has been around for a long time and, as far as young people are concerned, I think that the good-will winds are, in a sense, behind it. Obviously, though, the committee has a duty to look underneath and work together on the detail.

On that note, I thank the cabinet secretary for her extensive contributions and her officials for appearing before the committee. That concludes this morning’s formal business, and I thank everyone again.

11:57 Meeting continued in private until 12:12.