Meeting of the Parliament [Draft]

Meeting date: Thursday, December 7, 2023

Official Report 996KB pdf

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

The next item of business is reconsideration stage proceedings on the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill. In dealing with the amendments, members should have the bill as passed at stage 3, which is SP Bill 80B; the marshalled list; and the groupings of amendments.

The division bell will sound and proceedings will be suspended for around five minutes for the first division of the afternoon. The period of voting for the first division will be 45 seconds. Thereafter, I will allow a voting period of one minute for the first division after a debate.

Members who wish to speak in the debate on any group of amendments should press their request-to-speak buttons or enter the letters RTS in the chat function as soon as possible after I call the group. Members should now refer to the marshalled list of amendments.

Section 6—Acts of public authorities to be compatible with the UNCRC requirements

Group 1 is on compatibility duty. Amendment 1, in the name of the Cabinet Secretary for Social Justice, is grouped with amendments 2, 3 and 45.

The Parliament unanimously passed the UNCRC (Incorporation) (Scotland) Bill on 16 March 2021, based on our then understanding of the devolution settlement under the Scotland Act 1998. The section 6 compatibility duty was intended to extend to all devolved functions.

The United Kingdom Government chose to refer the bill to the Supreme Court before it could receive royal assent. Although we fully respect the judgment, the Scottish Government was disappointed that in October 2021, the Supreme Court found that section 6 was outwith the Scottish Parliament’s legislative competence.

Although I am disappointed that the scope of the compatibility duty is far less than we had originally hoped that it would be, I am pleased to have lodged amendments to the bill to be reconsidered. I urge members on all sides of the Parliament to give those amendments the same support as they did during the original bill process.

The principle remains that we want Scotland to be the best country in the world for children to grow up in. The amendments are the result of many months of analysis of our options and engagement with stakeholders and with United Kingdom Government lawyers to ensure that they protect children’s rights to the maximum effect possible, minimise the risk of another Supreme Court referral and make the law as accessible as possible for users.

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Once the bill has completed its parliamentary passage, the UK Government will consider it in the usual way. It cannot give us a reassurance that will guarantee no further referral to the Supreme Court. However, the amendments have been shared with UK Government lawyers, and no concerns have been communicated in relation to legislative competence. I am confident that there are no grounds for the bill to be challenged again by UK law officers.

I will now explain the effects of amendments 1, 2, 3 and 45 on the section 6 compatibility duty. The amendments to the compatibility duty address the Supreme Court judgment by making it clear that the duty applies only to a “relevant function”. Through the definition of “relevant function” in new section 6(1A), the compatibility duty is now restricted to the delivery of functions that could competently be conferred by the Scottish Parliament. That means that reserved functions are explicitly removed from the duty.

The amendments make it clear that functions that are conferred by legislation that originated from the UK Parliament are not subject to the compatibility duty. That also has the effect of removing devolved functions that are created by or under the authority of the UK Parliament.

As proposed under the amendments, the compatibility duty will not apply to amendments to UK acts that are made by acts of the Scottish Parliament. To achieve that coverage would have been especially complex for users.

That means that the scope of section 6 is much narrower than was originally intended. For example, one provision that would not be within the scope of the compatibility duty is the requirement for a public body to promote sibling relationships between looked-after children. That duty is conferred by section 13 of the Children (Scotland) Act 2020—an act of the Scottish Parliament that amended the Children (Scotland) Act 1995, which is a UK act.

The compatibility duty will still apply to functions that are conferred by amendments that are made by acts of the UK Parliament to acts of the Scottish Parliament. The rationale for that approach is to prevent unnecessary or disproportionate exclusion from the compatibility duty of functions that have been subject to minor changes by a subsequent UK act. However, to ensure that those do not condition the UK Parliament’s law-making powers, new section 6(1C) makes it clear that a public authority cannot be found to have acted unlawfully by acting incompatibly if it were required or entitled to do so by legislation that originated from the UK Parliament.

In summary, the compatibility duty will apply when a public authority delivers devolved functions that are conferred by or under acts of the Scottish Parliament or common law powers.

I accept that there is a degree of complexity about how the scope of the compatibility duty is defined. That is a result of the way in which we have had to navigate legislative competency, following the findings of the Supreme Court.

I do not envy the cabinet secretary the next few minutes of dealing with the amendments.

One thing that has been raised is the seeking of guidance by local authorities about how the amendments will affect the compatibility duty. Will the cabinet secretary explain how local authorities will be supported as a result of the amendments?

As we discussed at committee, I am keen to ensure that we support local authorities and other public bodies on this subject. Despite the fact that the compatibility duty has reduced in scope, we expect and proactively encourage all public bodies to ensure that everything that they do is compatible with UNCRC, whether or not it is within the scope of the compatibility duty. We will seek to assist public authorities, but I would hate to have a situation in which public bodies treat children’s rights differently depending on whether they are within the scope of the compatibility duty. Public authorities should not need to stop and ask themselves whether their powers are within the scope of the compatibility duty before seeking to deliver their service in a way that respects and protects the UNCRC requirements. They should already be taking a children’s rights approach in the delivery of all their services, regardless.

The UK Government is already a signatory to the UNCRC, albeit that it has not incorporated it into domestic law. Regardless of the scope of the legal duties of the bill, the UNCRC is at the heart of getting it right for every child and the Scottish Government’s commitment to ensuring that all children and young people have the best possible start in life. We encourage public authorities to take a children’s rights approach, as far as they can, in delivering all their services.

I move amendment 1.

No other member has sought to speak. Do you wish to add anything, cabinet secretary?

No.

Amendment 1 agreed to.

Amendments 2 and 3 moved—[Shirley-Anne Somerville]—and agreed to.

Section 15—Reporting duty of listed authorities

The next group of amendments concerns the reporting duty of listed authorities, first reporting period. Amendment 44, in the name of the cabinet secretary, is the only amendment in the group.

Amendment 44 requires little by way of explanation; it simply changes the date in section 15(4) to make the first reporting date workable in practice. The bill will repeal part 1 of the Children and Young People (Scotland) Act 2014, which places a requirement on certain public authorities to report every three years on what steps they have taken in that period to secure better or further effect children’s rights. Section 15 of the bill will replace that with a similar requirement for listed authorities to report every three years on what they have done to comply with the section 6 compatibility duty as well as the actions that they have taken to secure better or further effect the rights of children generally, regardless of the legal source of their powers.

In essence, the amendment concerns the mechanism that allows the monitoring and evaluation of and compliance with the UNCRC under the bill.

The member caught me just before I sat down, so I am happy to accept that point and move on.

The amendment ensures clarity about when the three-year reporting cycle will commence.

I move amendment 44.

Section 15 refers to the reporting duties of listed authorities, whereby listed authorities must report on the action that they have taken or intend to take to secure or further effect the rights of children. The bill as passed labelled the first reporting period as the period beginning with the date on which the section comes into force and ending on 31 March 2023, with further reporting periods ending after every subsequent three years. However, due to the Government’s incompetence with regard to getting the legislation right the first time, the cabinet secretary has been forced to move that date to 2026, which is three years later than was originally planned. [Interruption.]

Had the Scottish National Party got things right almost three years ago, we would already have known—

Please resume your seat for a moment, Ms Gallacher. I do not want all of this sedentary participation. If members have something to say, they know how to do it. They must do the member who has the floor the courtesy of listening to her.

Thank you, Presiding Officer. They do not want to hear it, but it is fact.

Had the Scottish National Party got things right almost three years ago, we would already have known what listed authorities are doing and are planning to do to improve the rights of children.

We have not lodged any amendments on this matter, but it is important to highlight that point.

I am conscious that there are many children, young people and interested parties in the gallery who have long campaigned for the bill, so I hope that we can all rise to the occasion. I appreciate that political points will be made, but let us keep in perspective the wider picture. I will simply point that out that the Conservatives voted for the bill that the member refers to.

Amendment 44 agreed to.

Section 19—Interpretation of legislation

Group 3 is on interpretation duty and strike down and incompatibility declarators. Amendment 4, in the name of the cabinet secretary, is grouped with amendments as shown in the groupings.

This group of amendments provides that the interpretive duty, the power to strike down legislation and the power to declare legislation incompatible apply only in relation to words enacted by the Scottish Parliament or enacted by virtue of the Scottish Parliament delegating its power to make legislation. The duty and powers no longer apply to legislation originating from the UK Parliament, even in devolved areas.

There are also some minor consequential changes made in sections 24, 25 and 35 as a result of the amendments to sections 20 and 21.

The two new sections inserted after section 23 make clear that sections 19 to 21 apply only to words that are in an act of the Scottish Parliament or are in a Scottish statutory instrument made wholly or partly under a power conferred by the Scottish Parliament. The duties and powers in those sections do not apply to amendments to UK acts made by acts of the Scottish Parliament or vice versa.

These are necessary amendments and address the judgment of the Supreme Court.

I move amendment 4.

No member has sought to speak. Does the cabinet secretary have anything to say in winding up?

No.

Amendment 4 agreed to.

Amendments 5 to 9 moved—[Shirley-Anne Somerville]—and agreed to.

Section 20—Strike down declarators

Amendments 10 to 23 moved—[Shirley-Anne Somerville]—and agreed to.

Section 21—Incompatibility declarators

Amendments 24 to 32 moved—[Shirley-Anne Somerville]—and agreed to.

After section 23

Amendments 33 to 34 moved—[Shirley-Anne Somerville]—and agreed to.

Section 24—Meaning of “compatibility question”

Amendment 35 moved—[Shirley-Anne Somerville]—and agreed to.

Section 25—UNCRC compatibility issues in criminal proceedings

Amendments 36 to 41 moved—[Shirley-Anne Somerville]—and agreed to.

Section 35—Interpretation

Amendments 42, 43 and 45 moved—[Shirley-Anne Somerville]—and agreed to.

That ends consideration of amendments.

I am now required to make a determination. As members will be aware, at this point in the proceedings the Presiding Officer is required, under standing orders, to decide whether, in her view, any provision of the bill relates to a protected subject matter—that is, whether it modifies the electoral system and franchise for Scottish Parliamentary elections. In the case of the bill, in the Presiding Officer’s view, no provision of the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill relates to a protected subject matter. Therefore, the bill does not require a supermajority to be approved at reconsideration stage.