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

The next item of business is a debate on motion S6M-11573, in the name of Shirley-Anne Somerville, on the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill, at reconsideration stage.

15:12  

I am delighted to open the debate on the amended United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill. I welcome the children and young people and their representatives who have come to listen to our debate from the public gallery. I also express my thanks to the Equalities, Human Rights and Civil Justice Committee for its careful and thorough scrutiny of the amendments to the bill, and to everyone who engaged with the committee in providing evidence, including the children and young people who provided their evidence via video.

The intent behind the bill is to deliver a proactive culture of everyday accountability for children’s rights across public services in Scotland. The bill introduces a compatibility duty that will make it unlawful for public authorities, including the Scottish Government, to act incompatibly with the UNCRC requirements as set out in the bill. Children, young people and their representatives will have a new ability to use the courts to enforce their rights.

The bill also requires that, so far as possible, legislation must be interpreted and given effect in a way that is compatible with UNCRC requirements, and it gives powers to the courts to make strike-down or incompatibility declarators in respect of incompatible legislation of the Scottish Parliament.

The original bill was passed unanimously by the Scottish Parliament in 2021, but it could not receive royal assent due to a referral to the Supreme Court by UK law officers. That referral meant that we were constitutionally prohibited from enacting legislation that the Parliament unanimously decided was necessary to enshrine and fully protect the rights of our children. However, we have fully respected and carefully considered the implications of that judgment.

The key challenge in amending the bill has been deciding, in the light of that judgment, when the compatibility duty, the interpretive obligation and the strike-down and incompatibility declarators should apply. I thank the Scottish Government bill team for its commitment to providing a solution and for its close working and engagement with UK Government lawyers in doing so. I pay tribute to them, too.

The vehicle that has been presented today is amending the bill at reconsideration stage. Outwith the tight circle of the Scottish Government, engagement took place late. What other vehicles for rectifying the bill were considered? Did the Government do outreach work with the third sector and beyond on whether other vehicles might have been better suited than the approach that has been presented today?

I push back slightly on the suggestion that we did not consult stakeholders until late. We very much endeavoured to consult them during the process to find what solutions there were and to address the challenges, which I will talk about, of making sure that the approach was as wide as possible but not overcomplicated to the point that it was virtually unusable. We suggested alternatives in discussions. Once the decision was taken to move with the scope that was laid before the Parliament today, we drafted amendments accordingly.

The Equalities, Human Rights and Civil Justice Committee recognised the challenges that the Scottish Government faced in amending the bill to address the Supreme Court judgment. I very much welcome the committee’s strong support, in its conclusions and recommendations, for the principle of UNCRC incorporation and its confirmation that

“it is content that we explored all realistic alternatives”

to amending the bill

“and, under the circumstances, arrived at the best possible”

solution.

In amending the bill, the Scottish Government has tried to balance three considerations that very much deal with the point that Martin Whitfield just mentioned, which are protecting children’s rights to the maximum effective extent possible, minimising the risk of another Supreme Court referral and making the law as accessible as possible for users.

In balancing those considerations, I concluded that the maximum effective coverage for children’s rights in the present devolved context arises when the compatibility duty applies only when a public authority is delivering devolved functions that have been conferred under acts of the Scottish Parliament or common-law powers. That means that the duty will not apply when a public authority’s functions are delivered under acts of the UK 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 that originates from the Scottish Parliament. The Supreme Court judgment means that this Parliament’s power to give the courts remedial powers is limited when existing statutory provision happens to be in an act of the Westminster Parliament, even when that provision concerns matters on which the Scottish Parliament could and frequently does legislate. The reason for that distinction derives from Westminster’s continued claim of sovereignty over all matters, including those that are devolved to this Parliament.

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

It is clear that the Supreme Court judgment has significantly impacted our ability to legislate for human rights in Scotland. However, I emphasise that, even with the changes, the bill remains an important step forward. It will provide legal protection for children’s rights that is not currently available in Scotland or 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, the bill has other important provisions that will mean that children’s rights are respected in the first place. That will help to ensure that our statute book is fully compliant with the UNCRC requirements.

The bill requires the 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 it requires the listed authorities to prepare and publish similar reports. The bill requires the Scottish Government, when introducing any new Scottish legislation, to make a statement about its compatibility with the UNCRC requirements and to carry out a children’s rights and wellbeing impact assessment for decisions of a strategic nature.

The more limited scope of the compatibility duty means that it is even more important to create lasting cultural change in relation to children’s rights. I am confident that we can deliver that as a result of the wider 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, as well as a wide range of support, training and guidance for public authorities on how to take a child’s rights approach.

I was pleased to hear the cabinet secretary use the words “cultural change” in relation to the way in which we regard children’s rights. UNCRC incorporation should not be just a kitemark that we adopt and then move on from; the UNCRC is an ever-changing, evolving document and treatise on rights.

As I always do, I point to the age of criminal responsibility, which has moved in the time since the Parliament first considered children’s rights. Will the cabinet secretary speak to the Government’s progress on that, either now or in her closing remarks?

I appreciate Mr Cole-Hamilton’s continued work on the issue. He is right to point to the fact that the UNCRC and all such treaties on rights change and evolve. That is why it is very important that we continue to look at the issues—not just the one that Mr Cole-Hamilton mentioned—and ensure that we continuously update our legislation when that is required. The Government has committed to come back directly to the Parliament in due course on the issue that Mr Cole-Hamilton raised.

I have asked my officials to commission a review of UK acts in devolved areas. The purpose of that review is to identify provisions in acts of the UK Parliament that might benefit from being re-enacted into acts of the Scottish Parliament, so that they can be brought into the scope of the compatibility duty in the future. That review will be commissioned as soon as is practical after the bill receives royal assent, and any new legislation that is required to re-enact provisions in acts of the UK Parliament will be prioritised and paced in a way that recognises the need to progress that, alongside the Government’s wider legislative programme.

We must stress once again that it remains the fact that 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. The bill is a milestone and a substantial step forward, but it is limited by the Parliament’s powers. I will continue to press the UK Government on that, and I hope that other colleagues in the chamber will do the same.

In the meantime, we have an important opportunity to lead by example in passing the bill. I am very confident—and it is our understanding—that the amendments that we have discussed and agreed to today address the Supreme Court’s judgment of our legislative competence.

Today, the Parliament has an opportunity to take that step forward, once again, and to make that important declaration to children and young people—not just those who are in the public gallery but those who will benefit from the rights that will be protected—that we are there for them today and will be there for them in the future. It is an important recognition of their rights—and our responsibility for them—that we can move forward with those rights in the chamber this afternoon.

I move,

That the Parliament agrees that the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill be approved.

I remind all members who wish to speak in the debate to press their request-to-speak buttons.

15:23  

The reconsideration of the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill has been two long years in the making. Before I get into the cut and thrust of the bill, it is important to draw members’ attention to the progress that has been made to improve children’s rights across our United Kingdom.

Although the UNCRC was introduced in Scotland on 1 September 2020, its original journey began in 1991, before the creation of the Scottish Parliament and—without trying to make anyone in the chamber feel old—before I or any of the young people in the public gallery were born.

I will briefly address the wonderful young representatives who are in the chamber this afternoon. Today is for you because, if the bill passes, it will incorporate children’s rights into devolved Scottish law. It is a milestone on Scotland’s journey towards making rights real in practical terms and it will add to the existing protections that are already in place.

However, this momentous occasion has not been an easy process, and this is where I will be critical of the Scottish Government. The Scottish National Party ignore several warnings from the Scottish Conservatives that the original bill would not be lawful. However, the Scottish Government did not heed those warnings, and we found ourselves having to go through the courts to bring through legislation that is within the Parliament’s devolved competence.

Can I just check the facts? Did the Conservatives vote for the bill or not?

We voted in favour of the principles of the bill, but we also warned the Government—[Interruption.] We also warned the Government on more than one occasion, but those warnings were not heeded. That is on the Scottish Government.

Today, we have had a series of amendments, which members have rightly supported, but not without seeking indications of changes and steps that will be taken to ensure them. Much as happened in the previous session with the greeting of the bill—which was, rightly, unanimous, because, without doubt, the rights of our children are crucial—warnings have been given. Is it not right that, had the Government heeded the warnings, we would not be three years and three months down the line, trying to put this right?

That is precisely right. The SNP must reflect on that today, because we are two years behind where we should be with this very important bill. Some of the young people who were involved with the UNCRC process in 2018 will probably no longer consider themselves to be young, because it has taken so long for us to get the bill back to the Scottish Parliament.

That being said, the Scottish Conservatives will be supporting the bill at stage 3 today. We know how much it means to children and young people across Scotland, because it incorporates into Scots law the United Nations Convention on the Rights of the Child, including political, economic, social and cultural rights. It places a legal duty on public authorities to act within UNCRC requirements, and it allows children, young people and their representatives to use the legal system to enforce their rights.

Even if it is passed today, the bill will probably not come without its challenges, and there are some outstanding questions. What happens next is the key one. Together Scotland has urged the Scottish Government to answer key questions that are still outstanding. One of them relates to the continuation of the UNCRC implementation programme. The three-year UNCRC implementation programme is set to conclude in March 2024. Together Scotland, alongside other organisations, has asked for that timeframe to be extended. That would allow time to include resources for children and young people, and for adults, to support them to understand their rights, and other measures to ensure a holistic approach that aligns with the existing policies and structures, such as the Promise and getting it right for every child. If the cabinet secretary could expand on that in her closing statement, it would put organisations’ minds at rest, as there is more to come following the bill. It is not just about the intent of the UNCRC but about the practical elements that will enforce the legislation, because they must also be upheld.

That brings me to my final point today. Time and again, we have heard that the bill will be transformational, and it will be. As a member of the Equalities, Human Rights and Civil Justice Committee, I heard the story of Shirley-Anne Spider, the cabinet secretary who created the web for the UNCRC to be built on. I am not sure that the cabinet secretary or I would ever have expected that type of imagery to be used, but it sends an important message.

As convener of the committee, I want to give Meghan Gallacher the opportunity to correct that. The spokes of that web were the rights, and the flies were the threats to them. In no way was Shirley-Anne Somerville compared to a fly.

I think that we have got the gist. Ms Gallacher, you need to start concluding your remarks.

I am not sure that that was the intent. The cabinet secretary was referred to as the spider who was holding the web together. That was in no way meant as an insult; it was actually meant to be complimentary of the evidence that was taken by the committee. If my comment was taken in another way, I think that the member is stretching it, to be perfectly honest.

That brings me back to the point that I was trying to make: the Government holds the web strings for the bill to be a success, but everybody needs to pull together for that to happen. It can be a success only if the Government ensures that young people understand their rights and know how to exercise them.

Local authorities and others have done a power of work already behind the scenes to get ready for the changes that the bill will bring. We need to utilise everyone—not just those who specialise in children’s rights and not just local authorities but our private and charitable organisations that work day in, day out to improve the lives of our young people; our youth work organisations, which will be pillars in the upholding of children’s rights as part of the UNCRC; and parents, who are integral to this journey. I am not sure that we have brought everyone into the UNCRC web yet, but I think that the Government and others can work to do so.

We need to go back to the mess that the Government created at the start of the legislation, because we are not at the stage—

Will the member take an intervention?

No, the member is about to conclude her remarks.

The Scottish Conservatives will be voting in favour of the bill at decision time. I said from the start that the bill is for Scotland’s children and young people, and I look forward to voting in favour of it at stage 3.

15:30  

It is a great pleasure to speak on behalf of Scottish Labour on this day. The UNCRC (Incorporation) Scotland Bill was introduced on 1 September 2020, and here we are, 1,193 days later—just shy of three years and three months—voting on a motion of reconsideration. I welcome the debate and, I hope, the positive vote in support of the reconsideration bill that will return it to our statute book.

Today we vote on a reconsideration bill—a first for this session and, indeed, a first for the Scottish Parliament. That takes me to what I would like to be the main point of my speech—that I hope that the bill will pass but that the Government and the Parliament must look at the experience of the bill’s journey and ask ourselves whether we could have done it better.

I very much welcome the Government’s offer, through the Minister for Parliamentary Business, of an opportunity to discuss the journey of bills through reconsideration. However, there is also the question why this bill seemed to find itself in so much trouble.

We can look back at debates, statements and questions that have happened over the three years and three months that illuminate why we are here. Perhaps on this day it is right—because I was reminded by someone that we should grasp our victories when we can and take pleasure even in the small ones—that we look back to see whether we could have done better.

Today’s amendments on behalf of the cabinet secretary and the Scottish Government, which were proposed and have been voted through, came as a “Take it or leave it” package. That was how it had to be constructed to get past the challenges that the Scottish Government has told us about in relation to discussions with other places and with cognisance of what the Supreme Court could still, if invited, look at again.

However, the bill was built on the expectation of our young people that their rights would be enshrined in Scottish law—that they would be able to have their country stand by them and say, “You have rights. They must be upheld and, however uncomfortable it might sometimes be for vested interests, the status quo or your elders, you have the right to be part of the decisions that are made about your lives.”

Time is short in this debate—which is in itself an irony—but so is the period of being a child, when looked at in hindsight. For the young people who have been on the journey with the bill, time has passed slowly, but they can now look forward to opportunities to fight hard for those rights to be respected. I, like others, thank all the young people for their patience, their wisdom and their tenacity over this issue. I thank also those adults who have stood alongside to support, facilitate and, on occasion, fight for the young people to be part of the decisions that led to this solution.

There are asks of the Government, and I hope that the cabinet secretary can deal with them. I hope that she confirms her commitment to a timeline for the review of legislation after the undertaking on the review. I hope that she can commit to the continuation of the UNCRC implementation programme, which was discussed in the financial memorandum—which is itself quite an old document now—but as the three years that the programme was meant to take will end in March 2024, I hope that the time for it will be carried forward, because without that we will find ourselves in another challenging position. I hope that she will commit to using specific legislation opportunities to expand the scope of the UNCRC bill, and commit to minimising future Scottish Parliament amendments to UK acts, so that it all can be brought in.

I want to quote Olivia Brown MYSP—deeply to her embarrassment, I hope. She said:

“If I could tell the government one thing I’d tell them that it’s important to remember that if this bill is passed, your work doesn’t end here.

In fact, the real work is only just beginning”.

She is right. That is an absolute call to the Government, politicians, our local authorities and anyone who works with young people that this is not the end; it is the very beginning of taking forward what has been described: a cultural shift in the attitude towards our young people so that they can be round the table when violence in schools is discussed and when decisions are made about their lives, not just as bystanders but as an integral part of how we reach decisions.

I will leave the final quote to a student in a wonderful group I met last Friday in Preston Lodge high school in Prestonpans, East Lothian, who did that marvellous thing that children occasionally do, which is fail to ask to an adult a question fast enough, which then lets the adult get the question in. The question was, “Will the UNCRC make your future better?” She said, “Maybe.” This place and Scotland’s Government have a responsibility to turn that maybe into a yes.

15:36  

It is with no small degree of emotion that I stand here today on behalf of the Scottish Liberal Democrats to speak in favour of the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill at the reconsideration stage.

Before I commence the substance of my remarks, I want to recognise some friends—it is rare that I get so many friends in the gallery at one point—who started out on the journey towards this stage with me and many others some 11 years ago. There are too many to name all of them individually, but I see the former Children and Young People’s Commissioner Scotland, Bruce Adamson, Nick Hobbs, Selwyn McCausland, Chloe Riddell and Juliet Harris. There are many others. The children who started out on that journey with us back in 2011 have all grown up and have moved on with their lives. They have been joined by other children and young people in the gallery. I salute their being here, because this is about them and those who will follow them.

Nine years ago, I told the Education and Culture Committee on behalf of the children’s voluntary sector, of which I was a member at the time:

“the most elegant solution against the international standard”

for upholding children’s rights

“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.]

The journey started back in 2011, when the SNP manifesto talked about a rights of children and young people bill. That was conflated into the Children and Young People (Scotland) Act 2014. It has been a long road with many setbacks, but here we are today. It was a proud day when, in March 2021, legislation was passed to do exactly that.

However, as we have heard many times today, it is deeply regrettable that it has taken so long for us to come back here and correct the competence issues that the Supreme Court raised. Some of those competence issues were already known to the Scottish Government.

The incorporation of the UNCRC will ensure not just that the rights of our nation’s children are respected and protected in the law of our land but that public authorities are legally required to bake the consideration of those rights into all the work that they do. I am pleased that, after today, that will happen at long last. The Parliament has a duty to improve our children’s future in everything that we do by ensuring that their rights are embedded across all our considerations and all policy areas, with a policy focus on direct engagement with children and young people, making real their article 12 rights.

Martin Whitfield is absolutely right. If violence in schools is being talked about, children need to be at the table. We have not been good at taking such an approach in the past, and we need to learn from others, but we can be good at that in the future. It says a lot that, when I was in the voluntary sector, I was the youngest member of a panel that was tasked by the minister to look at child sexual exploitation.

It will be a relief to have the bill in law. However, it is not enough just to write legislation; we have to live it year in, year out and day by day. It must be delivered in a meaningful way, and we must weave the spirit of its words into all our actions.

To that end, I hope that ministers will commit to reporting to Parliament on the evidence of rights transgressions in our communities and, indeed, our public bodies. That must be a living document. As I said in my intervention to the cabinet secretary, it cannot just be a kitemark or a rubber stamp that says, “Great for us. We’ve got this.” We need to live it and breathe it, which is why I raised the issue of the age of criminal responsibility. Members will remember that, while Parliament was considering the Age of Criminal Responsibility (Scotland) Bill, the UN Committee on the Rights of the Child raised the international floor from 12 to 14. We took a shot at children’s rights and missed. We are still behind the pack in that vital piece of legislation.

I will, perhaps for the last time, tell the story of Lynzy Hanvidge, who gave evidence to the Equalities and Human Rights Committee. The night that she was taken into care, she was arrested for punching a police officer who was trying to separate her from her siblings. Lynzy spent a night in adult cells at the age of just 13. On that occasion, the state compounded one adverse childhood experience—being separated from her family—with another, because it was, arguably, a breach of her article 37 rights under the UNCRC to be housed in adult accommodation. She was failed by our system and had no recourse to justice. She still has no recourse to justice, because she is above the age of criminal responsibility.

The issue of children’s rights is an urgent one. Every day that has gone by without children’s rights being enshrined in law, including the many days that it has taken us to bring the bill back to Parliament—I do not know why there has been a delay—has exposed our children to many risks. I am glad that we are finally moving towards the bill’s implementation, and I am grateful to colleagues across the chamber for their dedication to the bill. Once again, I thank my friends in the gallery.

“There can be no keener revelation of a society’s soul than the way in which it treats its children.”

Those are not my words but the words of Nelson Mandela. With the bill, we are finally realising the promise in those words, which is why the Scottish Liberal Democrats will take great pride in voting for the bill at decision time today.

We move to the open debate, with speeches of up to four minutes.

15:41  

As someone who has spent almost their entire life dedicated to children, I am delighted to see the bill return with amendments for its reconsideration stage. Today, on my birthday, I feel genuinely blessed that we, in this place, will pass the legislation and enshrine children’s rights in Scots law. My colleagues have that power in them today, and our children and young people are watching with open hearts, as am I.

The general principles of the UNCRC are non-discrimination; the best interests of the child; the right not only to survival but to development; and the right to be heard. As we look to the future, the old expression that children should be seen and not heard must finally be consigned to the dustbin. Educator and author Jess Lair put it that

“Children are not things to be molded, but are people to be unfolded.”

As convener of the Equalities, Human Rights and Civil Justice Committee, I was fortunate to be involved in the scrutiny of the amended bill. We heard compelling evidence directly from children and young people, some of whom are in the gallery now. I welcome representatives from Together (Scottish Alliance for Children’s Rights), the Children’s Parliament and the Scottish Youth Parliament, and many other tireless campaigners. We must not forget that today is not about us but about each and every one of them. The children and campaigners who once sat where those campaigners sit now will finally see life breathed into the rights that they fought so hard for. It is my privilege to have played even a tiny part in that journey.

Juliet Harris from Together (Scottish Alliance for Children’s Rights), who is with us today, used an analogy on the day that she appeared in front of the committee. It was Halloween and the children wanted to make it fun for us. Juliet told the committee that the legislation is, indeed, like a spider’s web: the threads of that web represent the legislative protections and the flies are the threat. The children wanted to explain, through Juliet:

“With no web, flies might fly everywhere—they might think that they can do as they please.”—[Official Report, Equalities, Human Rights and Civil Justice Committee, 31 October 2023; c 5.]

However, with this legislation, we build up a layer of protection and build our own spider’s web. It might not be perfect, the children said, but the fact that it exists at all will be enough to scare off the many troublesome flies. The web will only get stronger as it continues to grow.

For many of us, including me, this process has taken longer than we would have liked or anticipated. Nevertheless, I am hopeful that the Parliament can, once again, pass the bill unanimously, albeit in an amended form.

I note that, if passed, the legislation will be subject to wider consultation once it receives royal assent. I would be grateful if the cabinet secretary would comment on the length of the consultation and who will be consulted.

I welcome the UNCRC innovation fund to assist eight local authorities to develop a children’s rights approach. Will that fund be extended to all local authorities over time?

On the funding of a Scottish Public Services Ombudsman complaints process for children, will the cabinet secretary offer more information on how that model will be shared more widely and with whom it will be shared?

Presiding Officer, once a teacher, always a teacher. In true primary school teacher style, I have penned and dedicated a wee poem for the children who are here today or listening elsewhere.

Laws are like rules that keep things right,
But they’re sometimes slow to take flight.
We say with our voices loud,
To make sure rights reach every crowd.

New plans will come to make things good,
In every home and neighbourhood.
It’s people that make our country tick,
And empowering children will do the trick.

We owe children so much, but, most of all, we owe them a childhood, and that is what the bill helps to enshrine in the very law of our land.

15:46  

I am delighted to speak in the debate as we consider the reconsideration stage of this very important bill. It is a pleasure, as always, to follow other speakers, but I pay particular tribute to everyone in the chamber who has had forbearance and campaigned strenuously for this day to come. I note, in particular, Martin Whitfield and Pam Duncan-Glancy, on the Labour front bench, who have consistently challenged the Government when that has been needed and who have worked constructively with the Government to drive forward the debate. I pay tribute to them and everyone else in the chamber who has worked hard. Today, it is also right for us to think about teachers, social workers, children’s rights organisations and workers from across the sector and their work to drive us forward, to keep our focus on the bill and to get us to the reconsideration stage.

That is enough about the adults, because they are not the people who really matter in today’s debate, and they are not the people who have mattered in the debate from the very beginning. It is the children and young people of Scotland who matter most when we have these debates, discussions and considerations. We have heard powerfully in the debate about the voices of children and young people and what they have told us repeatedly in the Parliament.

I was always aware of the importance of the bill and the work that has been done, but, lately, I have come to it through the Equalities, Human Rights and Civil Justice Committee work that I was able to do in the reconsideration phase. As has been mentioned by Meghan Gallacher and Kaukab Stewart, the committee heard in very innovative and interesting ways from young people as they presented their views about how their rights should be protected through the bill. Although, in their view, the bill is still imperfect, it is an opportunity to have the safeguard of the protections in order to scare away those who would seek to misuse, abuse and deny them of their rights.

Martin Whitfield spoke very powerfully when he referenced members of the Scottish Youth Parliament to whom he spoke about what they desire to see. Although parliamentary moments such as this are important—of course they are; they are a moment in time, and we do something very formal when we pass a piece of legislation—what comes next is the most important part. We now need a considered and clear plan for how we will protect those rights, make them a reality in every part of Scotland and ensure that young people have the opportunity for redress when their rights are breached or abused.

I put to the Government key questions that I would ask it to respond to in its summing up of the debate. How will we ensure that children’s perspectives and lived experience remain at the forefront of decision-making processes? Will the Government commit to regular, transparent reporting to the Parliament and the public on the progress and outcomes that are achieved after the enactment of the legislation? Will it detail the resources and support that are allocated for the implementation of the legislation across Scotland? What efforts will it make to assess the potential consequences of the delay, which we have heard about already, in enacting the legislation and bringing the rights to the fore? Indeed, we know that there is a myriad of other considerations around how we ensure that it can be assessed whether Scots law can be brought into competence.

Therefore, there is a huge amount of work for the Government to do and to reflect on, because this cannot be simply another moment in time; it must be the start of a broader piece of work that ensures that all children and young people across Scotland have their rights realised. Fundamentally, that is why we are here today. Fundamentally, it is our job as law makers to give voice to those who do not always have a voice, to stand up for them and to ensure that we uphold and protect their rights.

15:50  

I am extremely pleased to speak in the debate on behalf of the Scottish Greens today, and I am grateful to my colleagues on the Equalities, Human Rights and Civil Justice Committee, the committee clerks and all those who gave evidence to us and supported our reconsideration work in recent weeks. I am especially grateful to those organisations that work directly with children and young people that were able to bring their voices into that work.

The stage 3 debate on the bill in the previous parliamentary session was a model of co-operation, which John Swinney rightly described as

“a landmark moment in the Scottish Parliament’s history.”—[Official Report, 24 May 2022; c 12.]

We might not quite have managed that again today, but I think that we share a serious commitment to making the bill as robust and comprehensive as possible.

The Supreme Court judgment was, of course, deeply disappointing, and the attitude of the Westminster Government was both intransigent and petty—as, sadly, we have come to expect. If there were just one issue on which the UK Government could have resisted playing its constitutional culture war games, one would have thought that that would have been the welfare of children, but no. That means that the process will be more difficult than it otherwise would have been, but that does not lessen the significance of what we are doing today.

Fortunately, children themselves can set us a good example of making the best of what we have. No one on the committee will forget the vivid image that Juliet Harris of Together passed on to us from the children she works with. Others have already mentioned this, but it is worth repeating. In that metaphor, a Halloween web represented protections for children’s rights, with buzzing flies as potential breaches. I hope that the cabinet secretary is as delighted to have been designated Shirley-Anne Spider, in charge of the web, as I am to have been designated one of the spider MSPs.

As the children expressed it, the original web made it

“really tough for any of those flies to get through”.

Juliet Harris went on to say:

“We now have a looser web, where children’s rights might not always be so well protected. Although it catches some flies, other flies might sneak through. Even though that web is not so neat, children and young people say that it is critical. The very fact that a web exists scares away the flies”.—[Official Report, Equality and Human Rights Commission, 31 October 2023; c 5.]

Even when the bill is not directly applicable, the provisions of the UNCRC itself are. With the confidence, awareness and cultural change that the bill enables, the children of Scotland and those who support them will have tools to call the UK Government to account for the ways in which its actions, especially on immigration, breach those solemn commitments.

When we think of children’s rights, we think first, perhaps, of protection from harm. Of course, that is crucial, but other aspects are equally important. A child has the right to prevention of harm in the first place, including the deep abiding harms of poverty and destitution. They have the right to provision for their wellbeing, including space to grow and develop—space that is denied to babies and toddlers in Home Office institutional accommodation. Children and young people also have the right to participate in decisions about their own lives, which extends in scope as they grow older.

We in the Scottish Greens are proud of our role in promoting the rights of children; we are especially proud of the work of John Finnie in this Parliament. He led the legal protection of children against assault at a time when that was a radical and widely derided position. We support the bill now, as we have done throughout its passage, through calm and stormy seas.

Today’s proceedings send a message to the UK Government: you may delay our democracy with your slaps and your sulks, but you will not deter us from doing our duty. More important, we send a message to the children of Scotland, those who were born here and those who have travelled here, with or without their families, sometimes from places and situations of incredible danger and suffering: you are welcome here, you matter to us and our most important job is to stand up for your rights. Today is for you.

15:54  

Like other members, I am incredibly proud to speak today because I believe that this is one of the most significant pieces of legislation to be introduced here since devolution. The UNCRC has often been referred to as the gold standard for children’s rights and the unanimous passing of the UNCRC bill in 2021 was a historic moment for our Parliament.

I thank the many individuals and organisations that have made today possible, including the past and present Children and Young People’s Commissioner for Scotland, the cross-party group on children and young people, Together, Amnesty International. There are many more, and my colleagues have made reference to others. I also give special mention to Ryan McShane, a young person who is one of my constituents. I know that he is in the gallery today and, according to his Twitter feed, may well be getting very emotional right now. I say well done to you, Ryan, and to all the young people who have made today possible. [Applause.]

Although I do not have much time, it is important to stress that the passing of the bill in 2021 was a significant step towards a future based on tolerance, equality, shared values and respect for the worth and human dignity of all people. Unfortunately, as we have already heard Maggie Chapman say very eloquently, the UK Government’s legal challenge and the Supreme Court ruling made clear the constraints on the ability of the Scottish Parliament to legislate to protect children’s rights.

There is recognition across the sector in Scotland that, although the revised legislation will not provide the same protection for children’s rights as was initially envisaged, it is still a positive step in the journey towards the full incorporation of those rights, and the fact that it is supported by the many organisations that have fought for it should say it all.

In revisiting the bill, any amendments have to strike a balance between ensuring that the bill still protects children’s rights to the fullest possible extent and avoids any potential for further legal challenges from the UK Government. I was pleased to be a member of the committee that scrutinised the amendments in the reconsideration stage, which was a Parliament first. Although they are quite technical, as the minister said earlier, I am confident that the amendments will allow the bill to be compatible with both Scottish and UK law and that we will therefore all be able to progress with building children’s rights into the fabric of decision making in Scotland.

In its amended form, the bill will ensure that public authorities take proactive steps to comply with children’s rights in their decision making and service delivery. The bill will still enshrine the rights of children, young people and their representatives to use the courts to enforce their rights and will still contain measures to remove the barriers that children and young people may face in realising their rights and accessing justice. Ultimately, the bill still provides more legal protection for children’s rights here than in any other part of the UK.

I have been proud to support the Scottish Government’s diligence in delivering for children and young people in Scotland: getting it right for every child, the Promise and bringing this bill to the chamber are just some of the world-leading policy decisions that the Government has made.

I will make particular mention of youth work. This morning, along with colleagues from across the chamber, I attended and was a panel member at a YouthLink Scotland event entitled “The Right to Youth Work”. We all know how important youth work is in supporting young people up and down the country. I hope that the incorporation of the UNCRC will secure children’s and young people’s rights to youth work in the future and that that will be reflected in future funding decisions, particularly those in the budget.

I close by urging the UK Government to follow the Scottish Government by incorporating the UNCRC into UK law. Without a commitment by the UK Government to protect children’s rights across the whole of the UK, we in Scotland will be limited in what we can achieve, unfortunately. However, I am not confident that the same UK Government that is currently attempting to circumvent and undermine human rights law and international refugee conventions will make the political commitment to incorporate the UNCRC into UK law.

Today is for all the campaigners and young people who have fought for the bill to become a reality. This historic day is an opportunity for our country to be the best place in the world to grow up in, as we all want it to be, so let us all go out and make that a reality.

We move to the closing speeches.

15:59  

This Sunday, 10 December, will be the 75th anniversary of the adoption of the Universal Declaration of Human Rights, which was a pivotal moment for a generation. Today, as we prepare to celebrate that anniversary, I want to celebrate the incredible movement of young people and their organisations that we see in the gallery and thank them for joining us in another pivotal moment. They led the charge to get us to where we are this afternoon. They fought so hard, put in years of graft and, ultimately, convinced us all why incorporation of their rights matters. They did that because they knew that it was key to making Scotland the land of opportunity that young people deserve and need it to be—a place where they can grow up loved, with opportunities in their path, unobstructed by class, glass or stepped ceilings, and, crucially, a place where young people are able to challenge contraventions to their rights and hold public authorities to account.

When the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill was originally passed in 2021, young people were elated. They celebrated and rejoiced, yet it has taken well over two years for the legislation to officially make it on to the statute book. Although I do not want to dwell on that today, it is important to acknowledge it and to learn from the disappointment and delay. I believe that that delay must teach us and this Government that working together collaboratively is crucial and that warnings of overreach are not moments to hunker down and do battle, but moments to discuss, negotiate and work together to realise ambitions. Every day of delay represented a failure to do that and to properly respect, protect and fulfil the rights of Scotland’s children and young people.

As colleagues have acknowledged, the bill before us today falls short of full incorporation. Instead, it has been narrowed to cover only post-devolution legislation. That is disappointing, as we have heard, although it would have had less of a negative impact had we spent time in recent years focusing on bold legislative reform and bringing more laws into compatibility, instead of making small changes to existing legislation and passing framework bills that rely on regulation and less parliamentary scrutiny. As a result, key areas such as the provision of education, including standards and additional support needs provision, as well as the delivery of services for looked-after children, will not be protected by the compatibility duty.

However, the good news is that there is a solution, which is to never again miss the opportunity to legislate in areas that make a real difference to young people’s lives. Children and young people need wider legislative change to ensure that their rights are protected and fulfilled. Policy and practice and one law will not be enough.

Indeed, I spoke about that in great detail during the debate on my member’s bill on transitions just a few weeks ago. It will be unsurprising to many members to hear that I remain disappointed that the Government chose not to vote for my bill. I mention that to highlight just one concrete example of where words on human rights could have been turned into real action. There are examples elsewhere in education, too, and I hope that the Government, after we pass the UNCRC bill today, will take action forward at pace in those areas to give effect to the rights of children and young people in Scotland. We need strengthened laws and duties in swathes of other areas, too, with culture change on the ground and resources to underpin it. That includes action on education reform, safety in schools and standards. I hope that today will usher in a new era of action rather than words.

I make those points to highlight that being serious about incorporation must mean acting on such issues, which are close to home. Rights are not just theoretical or rhetorical. They are duties and responsibilities that must be real, from home to the Parliament and everywhere in between. We need both our Governments to be serious about human rights everywhere—in every law and in every street. They must be serious not just about the bill that we are discussing, but about all rights. That will mean taking decisions—bold ones, at times—on the issues that are facing young people in Scotland today, particularly in education. I hope that the Government will take the opportunity to do that.

We on the Labour benches always welcome the opportunity to vote for laws that protect human rights, and we will do that proudly at decision time today. In doing so, we will vote to protect children and young people not just this afternoon, but for the next generation. That is our job today. However, the job of realising rights does not end today—it starts today. I look forward to working for a Scotland where we smash glass, class and stepped ceilings so that every young person has access to the opportunities that they deserve—opportunities that they have a right to as a result of the bill.

16:04  

I am delighted to speak in the debate on the reconsideration of the UNCRC bill. Although the bill is much closer to becoming law within the Scottish Parliament’s devolved competence—a very welcome development—the incorporation of the convention must be done in the right way. As we have heard, the bill was originally passed in 2021 but was held to have fallen outside the competence of this Parliament. It has been nearly two years since the outcome of that legal case. Scotland’s young people, some of whom are joining us in the public gallery, have watched and waited for the bill to move forward, and rightly so.

As Martin Whitfield has said, we need to learn from the mistakes that have been made on the legislation. He suggested that we could do it better, and we should look at that. Meghan Gallacher spoke powerfully about the bill being for every single Scottish child and young person, including those in the gallery. I know that Alex Cole-Hamilton is a hugely passionate supporter of making the bill happen, and he has spoken in every debate on the subject that I have heard.

We heard from committee members how some children and young people compared the bill to a spider’s web. I cannot not mention the poem that Kaukab Stewart wrote, which was excellent. Paul O’Kane asked how the Government will report on the bill in the future; Maggie Chapman rightly recognised the great work of the organisations and third sector groups that help children and young people; and Fulton MacGregor recognised the great work of his young constituent, Ryan McShane, and the importance of youth work to our young people.

However, there have been criticisms of the SNP Scottish Government’s approach. The former Children and Young People’s Commissioner Scotland said that former First Minister Nicola Sturgeon “absolutely failed” young people, and that the current First Minister Humza Yousaf has made “big promises” for young Scots that have yet to be realised.

It is not just fellow members but external organisations that have been critical of the Government’s lack of action over the past two years. This year, the Scottish Youth Parliament stated that the long wait for reconsideration had been “hugely disappointing” for Scotland’s children and young people. That sentiment was echoed by the Promise oversight board, which criticised the Scottish Government for its perceived failure to improve vulnerable children’s lives.

Now is the time to set things right, so I will vote in favour of the bill at decision time. Children and young people like my two grandsons are at the core of why passing the amended legislation is essential for enshrining the rights of our young people in law.

The legislation sets out to achieve numerous aims for children. Incorporation of the UNCRC into Scots law will cover many facets of a child’s life, encompassing everything from civil rights to economic and political rights. It will also force any new bills to be UNCRC compatible, and so provide legal remedies when public bodies fail to act in accordance with it.

Aside from creating new obligations for such bodies, the bill will enable children and young people, together with their representatives, to enforce their rights through the Scottish courts. The involvement of children and young people is of the utmost importance in safeguarding their rights. That view was taken by MSYP for Glasgow Cathcart, Ellie Craig, who said that the bill offered an exciting chance to create policies that work for everyone, especially children and young people.

Such policies are a vital part of enshrining children’s rights in law across our nation. Not only will the passage of the bill and the incorporation of the UNCRC into Scots law act as a landmark domestic achievement in protecting children’s rights, but Scotland can become a world leader in safeguarding them. Today’s children and those of future generations will have the ability to grow up in a Scotland where that is the standard that we set.

I believe that members from across the chamber will join me in acknowledging that it has taken longer than we would have liked to get to this point. However, I am also optimistic that the bill enjoys enough cross-party consensus that we must now pass it on behalf of all Scotland’s children and young people. They have waited long enough for change to arrive. I will do my part by voting for the bill, having spoken today not only as an MSP but as a mother and a grandmother.

16:10  

I begin by once again drawing attention to the children and young people who are in the public gallery today: the rights detectives, the members of the Children’s Parliament, the members of the Scottish Youth Parliament, the Children and Young People’s Commissioner Scotland’s young advisers, and #TeamScotlandUN. I sincerely thank them and all those who have gone before them, because the bill is about them and for them, and that is—quite rightly—why we are elected to our Parliament: to represent them.

I also thank some adults in the room, in particular the children’s and young people’s representatives who are in the public gallery. I pay tribute in particular to my bill team and to everyone who has been involved in the reconsideration stage.

I also pay tribute to my friend and colleague John Swinney, who took the original bill through Parliament, for his dedication and commitment to children’s and young people’s rights as his work in Parliament has continued.

Parliament has heard much about me being compared to a spider this afternoon. It may be quite abstract for those who are new to the debate. To be honest, I have been called worse in various discussions, but I take it in the way that it was intended, at this point, because I think that I see Juliet Harris in the public gallery today.

The analogy that the children and young people put together was an exceptionally good one. If members have not caught up with that analogy, I would strongly encourage them to do a bit more research on the Halloween trick that they pulled at committee.

There has also been some discussion today about the lessons that we need to learn about the reconsideration stage. That is only right, as it is the first time that this Parliament has had to do a reconsideration stage. I think that it was Martin Whitfield who brought that up. Members will inevitably want to reflect on that, although that is not necessarily something for Government to do.

As we move forward with the human rights bill, we also need to learn lessons about the limitations that we are working under in this Parliament, and the fact that when the Scottish Government says that it is genuinely finding it hard to stay within legislative competence, we are saying that from bitter experience. We are asking for help as we try to move through that, both from members in the chamber and from our stakeholders, to ensure that we get the human rights bill correct first time round.

Today, however, we are dealing with the UNCRC (Incorporation) (Scotland) Bill. This is a historic day not only for us as parliamentarians but—more importantly—for Scotland’s children and young people, and for all of Scotland as we take a significant step forward in becoming the country that we want to be: a country where children grow up loved, safe and respected so that they realise their full potential, and where we respect, protect and fulfil human rights and live free from discrimination.

We know that the ambitions of the UNCRC (Incorporation) (Scotland) Bill have been dented by the Supreme Court judgment, but there is still much in the bill to celebrate. On her website, the Children and Young People’s Commissioner Scotland asks:

“Is incorporation of the UNCRC still worth it?”

She has answered emphatically:

“Yes it is.”

Regardless of the scope of the compatibility duty, the bill will help to change the way that we think about children’s rights, and it includes mechanisms for holding ministers and public authorities in Scotland to account for respecting, protecting and enhancing those rights.

On 20 November, which was world children’s day, the Minister for Children, Young People and Keeping the Promise spoke directly to children and young people in Scotland in a blog, in which she responded to questions from the Scottish Youth Parliament about the UNCRC (Incorporation) (Scotland) Bill. She explained not only how the bill will promote cultural change, but how it provides “extra legal protection” for children and young people that is not currently available.

This coming Sunday is human rights day, which is celebrated every year to mark the date on which the United Nations General Assembly adopted the Universal Declaration of Human Rights. That declaration enshrines the inalienable human rights to which every human is entitled, and this year will mark the 75th anniversary of its adoption by the UN.

Respect for human rights is as important now as it was 75 years ago. We see that made clear not only in the horrific, unimaginable conflicts around the world, but in the UK, with the repugnant Illegal Migration Act 2023, which includes a ban on the right to claim asylum, allows for the prolonged detention and removal of children, creates barriers for acquiring nationality, and lacks any consideration of the principle of the best interests of the child.

The UNCRC (Incorporation) (Scotland) Bill is an important step on Scotland’s journey to extend and protect human rights by incorporating treaties that have not previously been part of our domestic law. Its passing will be a significant achievement for Scotland. We are the only devolved nation in the UK to incorporate the convention into our domestic law, and the only devolved country in the world to incorporate it fully and directly, albeit with some carve-outs to reflect devolved competency.

Our approach is unique, in that the bill goes far beyond just incorporating the provisions of the convention to including a number of proactive measures on implementation, such as the requirements for the Scottish Government to produce children’s rights and wellbeing impact assessments, and to publish and regularly update a children’s rights scheme to demonstrate how it is progressing children’s rights. UNICEF UK has described the bill and the work surrounding it as an example of global best practice.

We have much to be proud of in the way that Scotland approaches human rights, and the bill is a chance to affirm and advance that approach. The Supreme Court judgment has impacted on our ability to deliver the ambitions of the bill, which was passed unanimously in 2021, but the Scottish Government has nonetheless persevered with the bill in order to deliver as far as possible on the Parliament’s democratic wishes.

Earlier, Martin Whitfield rightly quoted an MSYP in saying that this is only just the beginning. I will put it another way by quoting one of the children and young people who were at our Cabinet takeover recently, who told us to

“just get on with it”.

I humbly suggest that we do so, and I commend the motion and the bill to the Parliament.

That concludes the debate on the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill at reconsideration stage.

It is time to move on to the next item of business. I am minded to accept a motion without notice, under rule 11.2.4 of standing orders, that decision time be brought forward to now. I invite George Adam, the Minister for Parliamentary Business, to move such a motion.

Motion moved,

That, under Rule 11.2.4, Decision Time be brought forward to 4.17 pm.—[George Adam]

Motion agreed to.