Meeting of the Parliament

Meeting date: Wednesday, November 20, 2019

Official Report 1118KB pdf

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United Nations Convention on the Rights of the Child

The first item of business is a statement by John Swinney on the 30th anniversary of the United Nations Convention on the Rights of the Child. The cabinet secretary will take questions at the end of his statement, so I encourage members who wish to ask a question to press their request-to-speak buttons.

Today is the 30th anniversary of the UN General Assembly’s adoption of the Convention on the Rights of the Child, which is the most widely ratified human rights treaty in the world. Across the world, events are taking place to celebrate the progress that has been made in furthering the rights of children and young people. I am pleased that this Government stands among those nations that are pledging to go further, and I believe that that commitment is shared across this chamber.

The convention was a landmark treaty, recognising the importance of childhood and the unique needs of children across the globe. It sets out the civil, political, economic, social and cultural rights that all children, everywhere, are entitled to and it remains, to this day, truly world leading. It is unique in setting out how adults and Governments must work together to make sure that all children can enjoy all their rights. For many children across the globe, realisation of even their most basic rights is still blighted by war, famine or political instability. That that is so in the 21st century is truly shameful.

Our starting point is that of the United Nations itself, as set out in the preamble to the convention:

“the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”.

From that starting point flows a commitment that we must each shoulder to promote, secure and respect children’s rights in Scotland and across the world. The Government is committed to doing all that we can to meet the UN’s gold standard on children’s rights.

I can, therefore, reaffirm today that, with Parliament’s agreement, we will incorporate the United Nations Convention on the Rights of the Child into Scots law by the end of this parliamentary session. That commitment builds on a proud tradition of respecting children’s rights in Scotland that predates even the creation of the UNCRC in 1989, such as our pioneering and unique children’s hearings system, which became operational in 1971.

As a Government, we have made respect for children’s rights a priority. We have set out in statute our ambition to eradicate child poverty in Scotland and published our first child poverty delivery plan and first-year progress report; through the attainment Scotland fund, we are investing £750 million during this parliamentary session to tackle the poverty related attainment gap; we are almost doubling the funded early learning and childcare provision from 600 to 1,140 hours per year from August 2020, meaning that children and parents will benefit from 30 hours a week of high quality early learning; and we are the first national Government in the world to introduce access to free period products for up to 395,000 students attending schools, colleges and universities in Scotland.

Those are transformational changes that this Government is delivering for children and young people and their families today, and we continue to do more. This year will also see progress towards the implementation of changes to the age of criminal responsibility, raising that from eight to 12 years, and the Children (Equal Protection from Assault) (Scotland) Act 2019 will remove the defence of reasonable chastisement, making it an offence for anyone to smack a child in Scotland.

In Government, we have sought to put our ideals and values into practice. The Government will always speak up without fear or favour for democracy, human rights and the rule of law. We have placed human rights and the sustainable development goals at the centre of the Government’s purpose and our refreshed national performance framework. Indeed, our national outcome for children and young people to

“grow up loved, safe and respected so that we realise our full potential”

is aligned with the preamble to the UN Convention on the Rights of the Child.

We have established a national task force for human rights leadership, which, coincidentally, is holding its second plenary meeting today. Our vision is for a new statutory human rights framework for Scotland that ensures that the rights of every member of Scottish society are respected, protected and fulfilled and that we can all live with fundamental human dignity.

Incorporation of the convention, and ensuring that children’s rights are fully embedded in domestic law, is a first step in achieving that larger ambition. Doing so is a necessary process, and practical action is overdue. Although we live in a country that ratified the convention in 1991, international treaties such as this are not automatically part of the law in Scotland. The rights that are set out in the convention would become part of the law that is enforceable in the Scottish courts only if they were implemented by legislation.

Over the summer, we held a consultation to ask what the people of Scotland thought was the best way to incorporate the convention into domestic law. In the consultation, we set out two approaches to incorporation. We said that we planned to either directly incorporate those rights as closely as is achievable in the Scottish context or transpose them by enacting a suite of Scottish children’s rights. Today, I have published the analysis of the consultation responses. I am delighted that more than 160 individuals and organisations responded to the consultation, including through seven events that were attended by more than 180 children and young people.

To complement the public consultation, we convened a short-life working group that was made up of stakeholders from public authorities, the third sector, the Scottish Youth Parliament, academia and the legal profession. Its work has assisted policy considerations to date and will continue to do so. I look forward to receiving its report in due course.

It is clear from the consultation that there is wide recognition that incorporating the convention will significantly advance the protection and realisation of children’s rights in Scotland. Let me be clear: our children deserve no less. Through the responses to the consultation, it is evident that there is wide support for directly and fully incorporating all the rights that are set out in the convention. Children here in Scotland have said that they want the same rights that children have all around the world.

Although there was some limited support for the approach of having a suite of Scottish rights, we have heard that such an approach would carry a risk of diluting or changing rights, even if that were unintended. We will, therefore, not take that path.

The bill that I will introduce next year will instead take a maximalist approach. In every case possible, we will seek to incorporate the convention’s articles in full and directly, using the language of the convention. Our only limitation will be the limit of the powers of this Parliament, to which many of us obviously object. As a result, sadly, some parts of the convention—for example the provision on military recruitment—are reserved issues and cannot be incorporated by this Parliament.

The Children and Young People’s Commissioner Scotland and Together—the Scottish Alliance for Children’s Rights—have proposed a model that would see the whole convention included in the bill, subject to a restriction that the bill operates only within our devolved powers. Although we support the ambition, it is clear to the Government that that approach would not reflect the inability of the Scottish Parliament to make provision in relation to reserved matters. Nevertheless, my expectation is that a vast majority of the convention’s provisions can be incorporated by this Parliament. That will ensure that the rights that are contained in the convention are afforded the highest protection and respect possible within our constitutional settlement.

For those areas that are currently beyond our powers, I offer two points. First, I hope that the example of Scotland incorporating the convention will spur the United Kingdom and other states to follow suit. Secondly, in the expectation that we are on a clear journey to independence, the bill will make provision to allow incorporation of the articles of the convention that are currently beyond our powers into Scotland’s domestic law if and when the powers of the Scottish Parliament change in the future. That approach will, for the first time, mean that the convention will be directly built into Scots law. That represents a huge step forward for the protection of child rights in Scotland. Every devolved body, health board and council, as well as the Scottish Government itself, will be legally obliged to respect children’s rights; if they do not, children and young people will be able to use the courts to enforce their rights.

The bill will aim to ensure that there is a proactive culture of everyday accountability for children’s rights across public services in Scotland. In turn, that will mean that children, young people and their families will experience public bodies consistently acting to uphold the rights of all children in Scotland.

That is not all that we are doing. Today, I am also publishing an annual update on the progress that the Scottish Government has made in taking forward our “Progressing the Human Rights of Children in Scotland: An Action Plan 2018-2021”, which was published in December 2018. The plan sets out our aims for taking forward children’s rights until 2021.

We know that, in addition to making children’s rights enforceable through the forthcoming bill, we need to do more to support children’s participation in policy making and in the decisions that affect them. We need to raise awareness and understanding of children’s rights, including in relation to how authorities can make children’s rights real in practice. That is why we are developing a strategic approach to participation and progressing, through co-production, a three-year programme to raise awareness of children’s rights across all sectors of Scottish society, including among children and young people themselves.

Children and young people are our future. They are Scotland’s future and the future of the world. On the 30th anniversary of the convention, we can all be proud of the progress that Scotland has made in furthering child rights. The Government will continue to do everything within its powers to promote, secure and respect those rights, now and for the future.

I thank the cabinet secretary for advance sight of his statement. As the Parliament will know, the Scottish Conservatives had reservations in the past about the incorporation of the UNCRC into domestic law, not least because of issues to do with its compatibility with various other pieces of legislation. The cabinet secretary should be aware that concerns were raised at the meeting of the Education and Skills Committee this morning about the consistency of different aspects of legislation in the Parliament. What research has been done to ensure that, should the convention be incorporated into Scots law, it will be fully compatible with other aspects of legislation from the Parliament?

The key point to observe is that the purpose of incorporating the UN Convention on the Rights of the Child into Scots law is to provide the highest level of protection for the rights of children in our society. If that requires Parliament to amend the existing legislation of Scotland to ensure that it is compatible with the UNCRC, that is precisely what Parliament has to do.

We examine all those issues to ensure that we are observing the highest possible standards for protecting children’s rights. That is the purpose of the proposed legislation that we have consulted on and which I am announcing today, that is the basis of its development, and that is the basis of what we will present to Parliament when we introduce the bill, which will obviously be scrutinised by members as the Parliament considers it.

I, too, start by thanking the cabinet secretary for early sight of his statement. Labour members certainly wish to be associated with his remarks on the importance of the convention and with his desire for a gold-standard approach to children’s rights. Like Mr Swinney, I believe that that commitment is broadly shared across the chamber, and Labour certainly supports the full incorporation of the convention into Scots law and welcomes the outcome of the consultation. What is not shared across the chamber is the expectation that we are on a “clear journey to independence”, so I ask Mr Swinney why on earth he should choose to use such an important, consensual piece of proposed legislation to make such a narrow party-political point.

Secondly, we have previously legislated to confer rights on national health service patients, for example, only to find that there is no redress or sanction when those rights are abrogated. Can the cabinet secretary explain exactly how children’s rights will be enforceable in our courts following the incorporation of the convention?

My reference to Scotland’s journey to independence was to reflect what I think is a reality, but it also illustrates the point that the bill will build in a mechanism that will enable Parliament, as its powers are expanded in the future, which I hope they are, to keep its approach compatible with the UN Convention on the Rights of the Child as the agenda takes its course. Mr Gray and I both served on the Smith commission, which expanded the powers of the Parliament, and various other steps have also expanded its powers. That creates circumstances in which we need to ensure that there is a mechanism to update the Parliament’s powers.

The second point that Mr Gray raised was about the implementation and application of children’s rights and any challenge that flows from them. There are two elements to that. The first, which I laboured in my statement, is that I expect public authorities to take a proactive approach to ensure that their actions and approaches are compatible with the UNCRC. Secondly, in a reactive way, there is the opportunity for individuals to challenge in the courts any aspects of legislation that they judge not to be compatible with the UNCRC and the legislation that the Parliament will enact. The opportunity is available to challenge any legislation should it not be compatible.

I thank the cabinet secretary for early sight of the statement. I very warmly welcome the content of the statement and the progress that has been made. He talked about reserved issues. What consideration has been given to securing a section 30 order so that the fullest incorporation of the UNCRC into Scots law will be possible?

That is obviously an option that could be taken forward. My judgment is that, in trying to make early progress on the bill that we are committed to enact, we will take the steps that are necessary within the current powers of the Parliament to enable us to legislate in this respect. As I said in my statement, we will take a maximalist approach to ensure that we incorporate the UN Convention on the Rights of the Child to the greatest degree possible, but also to insert the mechanism that I referred to in answer to Iain Gray, which will enable us to develop other powers when the powers of the Parliament grow in the future. That is the mechanism that we have adopted to create a practical and tangible way to make progress on this. It will ensure that we put in place the maximum protection we can at this stage and have a mechanism that will enable us to fulfil our obligations as our powers change.

The Scottish Government has stated that it wants to achieve the gold standard on children’s rights and I entirely share that aim. However, earlier this year it failed to meet even the bare minimum expectations of the international community. The Commissioner for Human Rights of the Council of Europe, Dunja Mijatovic, said that an age of criminal responsibility of 12 would leave us behind the majority of Council of Europe members. The UN Committee on the Rights of the Child intervened during our consideration of the Age of Criminal Responsibility (Scotland) Bill, telling us to move the age to 14 immediately, and our own Children and Young People’s Commissioner Scotland said that any age below 14 cannot be justified in human rights terms. Does the Deputy First Minister recognise that any attempt to incorporate the UNCRC will fail in the eyes of the international community as long as we have an age of criminal responsibility that is among the lowest in the world?

No, I do not accept that analysis. The Government has undertaken the reforms to the age of criminal responsibility working with a very broad range of stakeholders to ensure that we can make a very significant change in the legislative basis of Scotland and do so in a sustainable way. That has enabled us to bring many stakeholders with us and to address the issues involved in changing the legislation on the age of criminal responsibility. Mr Cole-Hamilton will be aware that, during the passage of the Age of Criminal Responsibility (Scotland) Bill, there was extensive discussion and debate on these questions and Parliament was persuaded by the evidence that the Government presented on the course of action that we took. We also inserted a mechanism into the bill to enable us to consider the issues that arise from the changes that we have already made and any arguments for going further. That mechanism was also supported by Parliament.

I welcome the announcement that the Government will not take a “suite of Scottish rights” approach but will seek to incorporate in full and directly, using the language of the convention. Will the Deputy First Minister confirm that the bill that he will introduce will include a strong proactive element to ensure that the rights of all children are considered at the front end of all law, policy making and delivery?

I give Ruth Maguire that assurance. We will put into the bill an approach that expects public authorities to act within the terms of the legislation. We will also be taking steps proactively to encourage awareness of and participation in children’s rights assessments, to ensure that all the issues of proactivity that Ruth Maguire has raised can be taken into account. We will build an expectation that public authorities will look proactively to ensure that the perspective on children’s rights is fully and comprehensively embedded in the working approach of public bodies and authorities. That will be our expectation of their conduct in the period ahead.

The cabinet secretary has made clear his view that all local authorities, all public bodies and all of the Scottish Government will have to be fully accountable for their actions with regard to children’s rights. What estimates of cost has the Scottish Government undertaken to ensure that that happens?

Those issues will be the subject of consideration when the financial memorandum is put in place. The Government believes that we have an obligation to ensure that we have the highest standard of rights; the financial implications of that will, of course, be subject to scrutiny when the bill is introduced in and considered by the Parliament. There will be opportunities for committees of the Parliament and the Parliament itself to scrutinise the detail of the assumptions that the Government makes at that stage.

The Deputy First Minister rightly pointed to the fact that our only limitation is the limit of this Parliament’s powers. Will he ensure that, when Scotland finally takes its place in the world as a normal independent nation, all legislation will allow for the incorporation into our domestic law of provisions of the convention in relation to which incorporation is currently beyond our powers?

That mechanism will be built into the bill that I introduce, to enable the Parliament to take account of any changes in the powers of the Parliament and to ensure that any of the issues on which we are, regrettably, unable to legislate to protect children’s rights, as a consequence of the limitations of our powers, can be addressed as the Parliament’s powers change in the years to come.

The full adoption of the UNCRC brings with it the possibility of unforeseen incompatibilities with pre-existing legislation, as has been mentioned. Has the Government identified examples of such incompatibilities and is it undertaking proactive work to identify possible conflicts with existing law?

The Government is undertaking work to identify areas in relation to which issues might have to be addressed. That will be a subject of consideration as the bill takes its course. We will also look carefully at the content and parameters of our responsibilities, to ensure that we act in a maximalist fashion to put in place the highest level of protection of the rights of children in areas of devolved responsibility.

The Deputy First Minister said that the convention refers to

“the equal and inalienable rights”

that we should all enjoy. However, it seems that under successive UK Tory Governments some children are more equal than others: Trades Union Congress figures this week showed that the number of children who are growing up in poverty in working households is up by 800,000 since 2010. Will the Government confirm that it will work to ensure equality for all children, even when it seems that the UK Government has given up on doing so?

The issue that Mr MacGregor raises is integral to decisions that the Government has taken in a number of respects. First, the Scottish child payment will directly address that issue, as does our work on the child poverty plan and our determination to eradicate child poverty. These issues are central to the Government’s policy agenda and we will use every opportunity that we can to address them.

Mr MacGregor made a fair point; as this Government is taking those steps, we are trying to operate to reduce and eliminate child poverty in challenging circumstances and conditions in which welfare reform and other measures in the United Kingdom continue to perpetuate austerity.

The cabinet secretary indicated in his statement that the Scottish Government is keen to do more to support children’s participation in policy making. Will he give us some details on how that will happen?

The Government has taken a number of steps to support the inclusion of children and young people in the formulation of policy. We engage extensively with the Children’s Parliament and the Scottish Youth Parliament. We realised during the year of young people that our mechanisms for gathering input have not been as strong as they should have been. Through collaboration with organisations such as Young Scot and YouthLink Scotland, we have created better opportunities for young people to influence Government policy. The cabinet meets on an annual basis representatives of the Children’s Parliament and the youth parliament, which give us—invariably—a pretty challenging conversation on many questions. We are very open to that dialogue.

I assure Mr Stewart of the Government’s determination to hear the views of children and young people. Indeed, our consultation exercise in preparation for this bill has been strengthened by a mechanism that specifically involves listening to the views of children and young people.

I am delighted that the Scottish Government has listened to the voices of our nation’s children throughout this process. Will the Deputy First Minister expand on how we will raise awareness of children’s rights across the whole of society, as well as among children themselves?

We have made a specific commitment by entering into an agreement with Young Scot and Children in Scotland to engage children and young people to advise on and inform greater awareness of children’s rights. That is an essential part of the awareness-raising dialogue that I referred to in my answer to Mr Stewart. That programme enables children and young people to express their contribution to the formulation of policy and, specifically, to raise awareness of the important issues of children’s rights that are at the heart of my statement.

I heard the cabinet secretary’s response to Mr Cole-Hamilton’s question. The recommendation from the United Nations is clear; the age of criminal responsibility should be 14. Incorporation of the UNCRC would require us to comply with that. I press the cabinet secretary to tell the chamber when the age of criminal responsibility will be raised to 14.

Mary Fee took a close interest in the passage of the legislation on the age of criminal responsibility, and she is familiar with what Parliament agreed on the contents of the bill, when it set the age of criminal responsibility at 12 and then inserted a mechanism that enables us to go through a process of dialogue and discussion to address any issues that arise. That is exactly what the Government will do as a consequence of Parliament passing that legislation in recent months.

I warmly welcome the Deputy First Minister’s statement. Will he outline what material changes and positive outcome he envisages from the incorporation of the UNCRC into Scots law?

First, we will have a legal framework in place that will take the most ambitious approach that we can take to the protection of children’s rights. That will be converted into legislation that will set out and codify those rights. Incorporation will also create an expectation that, in everyday practice, our public bodies should act to respect the rights of children in an active and planned fashion. I hope and expect that a change of culture will come out of that, so that we further entrench the rights of children in our society and ensure that they are respected by all public bodies.