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Chamber and committees

Meeting date: Wednesday, September 2, 2020

Meeting of the Parliament (Hybrid) 02 September 2020

Agenda: Point of Order, First Minister’s Question Time, United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill, Programme for Government 2020-21, Parliamentary Bureau Motion, Point of Order, Business Motion, Decision Time, Correction


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

The Deputy Presiding Officer (Linda Fabiani)

Good afternoon, everyone. The first item of business this afternoon is a statement by John Swinney on the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill—a revolution in children’s rights. The cabinet secretary will take questions at the end of his statement, so there should be no interventions or interruptions.

The Deputy First Minister and Cabinet Secretary for Education and Skills (John Swinney)

I am delighted to confirm that the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill, which was introduced in the Parliament yesterday, has today been published and will begin its parliamentary passage.

This is one of the most significant pieces of legislation to be considered by the Parliament in the 20 years since devolution. It is a bill of the highest constitutional and legal significance that must also transform the lives of our children. If it is approved by the Parliament, the bill will mean that Scotland is the first country in the United Kingdom to directly incorporate children’s rights into domestic law. I thank the children and young people and the children’s rights defenders who campaigned for the bill and made it possible.

The Scottish Government is committed to fully realising the human rights of all people in Scotland. We are committed to building a Scotland where respect for human rights anchors our society and the institutions that govern and deliver public services for the people of Scotland. The bill represents a significant step on the road to fully realising that future for Scotland—a future based on tolerance, equality, shared values and respect for the worth and human dignity of all our people.

The dual impacts of the Covid-19 pandemic and the United Kingdom’s withdrawal from the European Union underline the importance of building human rights into the fabric of society. Nowhere is that more important than in relation to children and young people, whose futures depend on the action that is taken by all public authorities to implement their rights in practice. Children’s rights matter now more than ever.

The United Nations Convention on the Rights of the Child is the global gold standard for children’s rights. By incorporating those rights directly into the law in Scotland, the bill will revolutionise how we protect, respect and fulfil children’s rights. It will ensure that children and young people are involved in the decisions that affect their lives and communities. Where breaches of children’s rights occur, the bill will mean that, for the first time, children and young people can use the courts to enforce those rights.

The bill takes a maximalist approach and will deliver the highest protection for children’s rights that is possible within the boundaries set by the Scotland Act 1998. The rights and obligations in the UNCRC and the first and second optional protocols are incorporated fully and directly, using the language of the convention itself, to the maximum extent of the Scottish Parliament’s powers.

It is of fundamental importance that all children and young people can access and enforce their rights. The bill will therefore apply to all children and young people under the age of 18, in line with the recommendations of the United Nations Committee on the Rights of the Child.

The definition of “public authorities” in the bill has been drawn intentionally wide. The duty in the bill will apply to public authorities to the fullest extent possible within the powers of the Parliament. That includes the devolved functions of core public bodies, such as local authorities, health boards and the police, and the devolved functions of public bodies that have mixed devolved and reserved functions. The bill makes it clear that the duty applies to the Scottish ministers and the courts. The duty in the bill will also apply to private bodies when they exercise functions of a public nature.

Although the duty cannot apply so as to modify the law on reserved matters, it may apply in some circumstances to reserved functions when that would not modify the law on reserved matters. That will require that careful consideration must be given to the circumstances of children and young people in practice.

Human rights can be fully realised in Scotland only if all institutions of the state take action to respect, protect and fulfil the rights that belong to every member of Scottish society. That includes this Parliament. The Scottish Government recognises that the Parliament itself requires to give further consideration to how the requirements of the bill should be applied to its functions, and we look forward to working with members on that question during the bill’s passage.

The duty on public authorities in the bill follows the model of the Human Rights Act 1998, requiring that public authorities must not act incompatibly with the rights and obligations incorporated by the bill. The duty in the Human Rights Act 1998 is well understood and the approach will provide as stable a framework as possible.

Children have their human rights, as set out in the European convention on human rights, protected by the Human Rights Act 1998. The bill will ensure that children and young people will also have legal protection for their children’s rights. My ambition has been to ensure that the bill puts in place the highest possible level of protection for children’s rights. My preferred approach would be to require all legislation, past and future, to be compatible with children’s rights, with the courts having the power to “strike down” incompatible legislation. That reflects a founding principle of the Scottish Parliament—that the institution exists to serve every member of Scottish society. The power to pass legislation that breaches human rights is not one that the Parliament should have, nor do I think that it is a power that members wish to have. However, provision requiring future legislation to be compatible with the UNCRC would alter the competence of the Parliament and is not, therefore, something that can currently be delivered by an act of the Scottish Parliament.

In line with the maximalist approach, it is my intention that a court should be able to strike down legislation when that is possible. The bill will therefore provide for different remedies in relation to legislation that predates and postdates the commencement of the bill. The bill will enable the courts to strike down incompatible legislation that predates commencement of the bill, and the courts will be able to declare legislation that postdates commencement of the bill incompatible. The bill will also ensure that damages can be awarded by the courts by way of just satisfaction.

The benefit of that approach is that, as far as is possible within the powers of the Scottish Parliament, breaches of children’s rights in historic legislation will not endure. In relation to future legislation, a finding by the courts that legislation is incompatible will bring transparency to breaches of children’s rights. Other measures in the bill will put in place a very strong framework to ensure the compatibility of legislation with children’s rights in practice.

The bill requires the Scottish ministers to publish child rights and wellbeing impact assessments and to make statements of compatibility for Government primary and secondary legislation. That will bring greater transparency and accountability for children’s rights into the legislative process. Ministers will also be required to undertake child rights and wellbeing impact assessments in relation to strategic decision making. The bill will require ministers to publish a children’s rights scheme on an annual basis, setting out what arrangements they have made or propose to fulfil the UNCRC compatibility duty. Ministers will also be required to report on the progress made and plans ahead for children’s rights.

The children’s rights scheme and reporting requirements will aid transparency and scrutiny of how the Scottish ministers will fulfil their obligations under the bill to ensure that children’s rights are considered proactively and fully implemented in practice. Building on the progress that has been made under the Children and Young People (Scotland) Act 2014, public authorities that are listed in the bill will continue to be required to report every three years.

Children and young people face additional barriers to realising their rights and accessing justice, and the bill introduces specific measures in recognition of that fact. Those include ensuring that claims are not time barred during childhood and giving the Children and Young People’s Commissioner Scotland the power to raise claims in the public interest.

In order to bring further transparency and accountability for breaches of children’s rights, the bill will require the Scottish ministers to report to the Scottish Parliament within six months following a court’s decision to strike down legislation or declare legislation incompatible. The bill will also include remedial powers, similar to those that exist in relation to the European convention on human rights, to enable ministers to take steps quickly to amend legislation that is found to be incompatible or potentially incompatible.

The bill builds on a strong track record across public authorities of implementing children’s rights in Scotland. The Scottish Government is committed to ensuring that public bodies are supported to fully implement the bill and will work in partnership with them on a £2 million implementation programme over three years. The bill will mean that children, young people and their families will experience public authorities consistently acting to uphold the rights of all children in Scotland. It will ensure that there is a proactive culture of everyday accountability for children’s rights across public services in Scotland.

The Scottish Government wants a Scotland where policy, law and decision making take account of children’s rights. We want a Scotland where all children have a voice and are empowered not just to know and understand their rights but also to assert and defend those rights and the rights of others. Fully realising the fundamental human rights of children and young people is essential to building the more prosperous, equal future that the Scottish Government wants for everyone in Scotland and especially for our children. Today, we embark on a parliamentary journey to fully realise the rights of all children and young people in Scotland. This is a landmark day in securing the rights and the future of Scotland’s children.

The Deputy Presiding Officer

The cabinet secretary will now take questions on the issues that have been raised in his statement. I will allow about 20 minutes for questions.

Jamie Greene (West Scotland) (Con)

I thank the cabinet secretary for advance sight of his statement.

Conservative members will fully support measures that protect and enhance the rights of children and young people that are set out in domestic legislation and international conventions. I commend the efforts of members and others outwith Parliament who have been faithful to their promise to bring the matter to Parliament.

We will work with the Scottish Government on the bill, and we will scrutinise and improve it where we can, and will ensure that the consultation is wide and respectful. There is no doubt that myriad technical and legal questions will arise from the bill—not least on how it will work alongside the UK Human Rights Act 1998, which transposes the European convention on human rights into UK law.

My question for the cabinet secretary is largely technical. What assessment has the Government made, in advance of publication of the bill, of any interactions, interplay or potential conflicts between the rights that are set out in the bill and those that are in any other relevant UK legislation and in the European and United Nations conventions? What assessment has been made of areas where there are divisions between devolved and reserved matters, and of potential conflicts between those areas and the complex hierarchy and interactions between the multiple conventions and pieces of legislation? What firm mechanisms will be put in place to ensure that any conflicts that arise will be dealt with fairly, so that any future bills that are passed by the Scottish Parliament do not spend endless months in the courts, which would serve no one?

John Swinney

I whole-heartedly agree with Jamie Greene that there will be “myriad technical ... questions”. I have wrestled with many of them in the course of the past couple of years, as we have prepared the bill.

The bill has been designed to try to avoid all the challenges that Mr Greene has set out; I stress the word “designed”. Parliament will have to scrutinise aspects of that to ensure that we have got the design architecture correct.

Mr Greene will know that by virtue of the Scotland Act 1998, this Parliament’s legislation must be compatible with the terms of the Human Rights Act 1998 and the European convention on human rights. That is a requirement of the Scotland Act that we cannot breach. We are required to act in a certain way, and the bill is designed to be compatible with that requirement.

There will, of course, be a range of issues in relation to which we cannot fully incorporate the provisions of the UNCRC because of reserved powers. There are a number of technical examples of that which, of course, we will happily explore with Parliament as we proceed with scrutiny of the legislation. However, we have designed a bill with the intention of enhancing protection of the rights of children and young people in our society, in a fashion that is compatible with the legal framework within which we must operate.

I will make a final point. Mr Greene talked about the role of the courts. I suspect that that will be an issue of some controversy, because members will be anxious to avoid legislation being challenged in the courts. However, in all honesty, one of the powerful elements of the bill is that it creates the opportunity for children, if there is the view that their rights are being infringed, to challenge legislation in the courts. That is an essential part of the approach that we are taking in the bill.

Mary Fee (West Scotland) (Lab)

I thank the cabinet secretary for early sight of his statement.

As a long-standing supporter of incorporating the United Nations Convention on the Rights of the Child, I welcome the announcement that the First Minister made yesterday, and the statement and commitment that the cabinet secretary has given today.

The bill has widespread support not just in Parliament, but in civic society, and delivering its aims will require a full understanding of children’s rights as well as appropriate funding. The £2 million funding package sounds low for achieving the full aims of incorporation. How will the Scottish Government ensure that bodies that will be more impacted by delivering the bill, such as local authorities and integration joint boards, will be appropriately funded to deliver all the aims of the bill?

John Swinney

First, I acknowledge the long-standing contribution that Mary Fee has made to the debate on incorporation, and the consistent support that she has given for that approach being taken. During consideration of the bill, I am sure that she will bring that significant expertise to bear in the scrutiny process, and I welcome that.

I have set out the funding approaches that we will take in relation to the implementation programme. However, the point that I make to Mary Fee—it was a critical point in my statement—is that the bill must enable the creation of a proactive culture of everyday accountability for children’s rights. Therefore, I do not consider it to be an issue or question that is to be solved by allocation of money to public authorities. It is about making sure that the culture of public authorities operates appropriately to protect children’s rights. That is more about the outlook and perspective of organisations than it is about the amount of money that is spent. Although many of them do a very good and accomplished task in that respect, we need to focus on the creation of that everyday culture. I hope that that will be a product of the passage of the bill.

The Deputy Presiding Officer

We move to open questions. I would like to get them all in, so please be aware of the length of questions and answers.

Ruth Maguire (Cunninghame South) (SNP)

Can the cabinet secretary expand on how, in practice, the bill will help children to realise and enforce their rights? For instance, what support will be available to ensure that all children, no matter their background, resources or the resources of their parents, are able to do that?

John Swinney

The bill will fulfil the objectives that Ruth Maguire asks about in two respects—first, by creating the opportunity for young people to challenge legislation about which they are concerned and, secondly, by empowering the Children and Young People’s Commissioner Scotland to make such interventions. That combination of the individual and the advocacy role of the commissioner is an important balance.

The other point to make—which, I suspect, I will come back to frequently in the course of my answers—is about the culture that I talked about in my answer to Mary Fee: the importance of changing the way in which public authorities act, in order to ensure that they operate with full cognisance of their obligation to fulfil children’s rights.

Alison Johnstone (Lothian) (Green)

I warmly welcome today’s announcement that the Government intends to incorporate the UNCRC into Scots law, which has been my party’s long-held policy. I thank all those who have campaigned to that end for many years.

For this important bill to have maximum impact, for the 54 articles of the convention to make a real difference and for the rights to feel real, it is key that all those who work and interact with our young people understand the rights and know what they are. Those people include parents, carers, health professionals, social workers, and even sports coaches and many more. How will the Scottish Government ensure that learning takes place so that the bill can have the maximum impact that we all desire?

John Swinney

I welcome Alison Johnstone’s support, and I acknowledge the Scottish Green Party’s long-standing commitment on the issue. I am glad that we have got to the point at which we can engage in discussion and pass the legislation.

The key is to ensure that respect for, and the pursuit of, children’s rights are integral parts of how all organisations operate and every action that they take. That will be at the heart of the Scottish Government’s approach to raising awareness. We will require approaches to be taken that reflect the necessity of all organisations to act compatibly with the terms of the UNCRC. That is what I mean by creating an everyday culture of respecting children’s rights in public bodies.

Clare Adamson (Motherwell and Wishaw) (SNP)

One of the lesser-known provisions of the UNCRC relates to the prevention of accidents. Article 19 guarantees the right to protection from injury, and article 24 outlines the right to access information, education and support in the prevention of accidents. As the convener of the cross-party group on accident prevention and safety awareness, I point out that that aspect of policy is often overlooked, despite accidents disproportionately impacting on children from our most deprived areas. With that social justice issue in mind, how will the Scottish Government protect and promote such rights, so that accident prevention is put higher on the political agenda?

John Swinney

I acknowledge Clare Adamson’s long-standing interest in the subject. The bill should not be considered in isolation from the wider agenda that is best summed up by the concept of getting it right for every child. That policy outlook and perspective has been taken forward by this Government, but it originated in the Government that predated this Administration.

There has been a long-standing policy commitment in Scotland to enhance and improve the life experience of children in our society. There are many areas in which clear progress has been demonstrated. We have had a challenging period during Covid, which has made the challenge for some of our young people even more acute. It is important that the work that Clare Adamson has highlighted is reflected in the wider perspective of ensuring that we actively and supportively improve the safety and the quality of life of children in our society.

Alison Harris (Central Scotland) (Con)

The cabinet secretary mentioned children challenging breaches of their rights in court. How does he envisage children paying for court action? The legal aid system is already fundamentally challenged. If I were a child, how would I take my challenge to court? Would I have to rely on my parents?

John Swinney

A variety of approaches could be taken, not least the one that I gave in my earlier answer, which relates to the Children and Young People’s Commissioner’s advocacy role on behalf of children. That is one of the routes that could be taken. Legal aid provisions are also available in that respect, so that can be added into the bargain.

Fundamentally, we are acknowledging in the bill the importance of children being able to challenge legislation when they believe that their rights are being compromised. That proposition opens up a new area of influence for children to exercise their voice and to be empowered in our society. The Government fundamentally welcomes that.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

I, too, fully welcome the announcement of the bill. Can the cabinet secretary set out how the incorporation of the UNCRC into Scots law will complement the current children’s human rights frameworks that are used by the Scottish Government, such as the routine publishing of children’s rights and wellbeing impact assessments?

John Swinney

The fundamental additional element that will emerge from the passage of this bill will be the requirement on public authorities not to act incompatibly with children’s rights. That is the strongest degree of obligation that we could put on public bodies as a consequence of the legislation. There are other approaches that are not as acute as the compatibility duty that we have chosen, which is designed to signal the importance that the Government attaches to ensuring that public bodies operate in a fashion that fully respects the rights of children at all times.

The decision to establish the broadest possible scope, taking into account the perspective of the organisations that will be affected, means that this legislative requirement will have the greatest effect on public policy in Scotland.

Pauline McNeill (Glasgow) (Lab)

Does the cabinet secretary agree that if the bill is to mean anything to children and young people it has to reach ordinary children and young people who do not have a connection to the political class? That class might even apply to the children’s commissioner himself. For example, will a young person who might be in need of mental health services, or other necessary support to secure their wellbeing, be able to understand how the bill can enhance their life?

John Swinney

There are two particular perspectives that I can give in response to Pauline McNeill’s question. One relates to the work that is undertaken in our education system—I know about it from my personal experience as both a minister and a father—whereby the understanding of the rights of children is now a central part of our curricular approach in Scotland. I often hear about certain issues when I get home at night. That is one perspective.

There is also the fact that we can engage young people through organisations with which they have a relationship. For example, Young Scot, which I do not think falls into the classification of being part of the political system, has a very strong and clear relationship with young people—it has extraordinary reach. Once young people are enabled to understand and exercise their rights, the challenges that Pauline McNeill highlighted can be overcome. However, we have to acknowledge the importance of equipping young people with knowledge and understanding of their rights, which is a central provision of the bill.

Alex Cole-Hamilton (Edinburgh Western) (LD)

I warmly congratulate the Government on lodging this bill, which is something that I have campaigned for for the past 20 years.

Several members have alluded to the fact that the legislation will only be as strong as the access to justice that it offers to children through the courts, but that is about more than just striking down bad legislation. The cabinet secretary has identified one route, through the children’s commissioner’s office, to litigate test cases in the public interest. However, that is an exceptionally narrow bottleneck. Children’s rights are violated every day, so what additional provisions will this Government consider to ensure that any child—at any time—has the right to legal redress through the courts when their individual rights are violated?

John Swinney

There are a couple of different dimensions to that question. One relates to the point that I have made to members on a number of occasions, which is about the outlook of public bodies and their actions to protect and properly address the rights of children. That relates to the operational priorities of different organisations, and that is the easiest way by which the rights of young people are protected, because they do not need to go to court if they have a good and positive experience of being supported by public services.

The other dimension is about ensuring that there is a route by which young people can exercise that challenge if they believe that their rights have been infringed. The example that I cited of the Children and Young People’s Commissioner is one mechanism that is available through the bill.

We are engaged in a parliamentary process on the bill, and I will remain open to discussing these questions with members. I acknowledge Mr Cole-Hamilton’s long-standing interest in the subject. We can, during the course of proceedings, discuss what other routes or approaches might be taken.

Annabelle Ewing (Cowdenbeath) (SNP)

I welcome the cabinet secretary’s clarification that all devolved bodies, in addition to the Scottish Government and the courts, will be bound by the obligation in the bill to respect children’s rights. On how that will work in practice, will the declarations on the compatibility approach of the Human Rights Act 1998 be followed under the bill?

John Swinney

The Government’s preferred policy would be to require all legislation—past and future—to be compatible with the UNCRC and for the courts to be required to strike down incompatible legislation.

I explained in my statement that there is a challenge regarding future legislation, and the bill provides for two different remedies in respect of any legislation that is found to be incompatible. For any primary legislation that predates the bill, the strike-down provision will exist for the courts. In any future legislation, the Government will be required to make a compatibility assessment of any new primary or secondary legislation to ensure that it is compatible with children’s rights.

The Deputy Presiding Officer

I have decided to allow the last two questions. It will be helpful if members are succinct.

Jeremy Balfour (Lothian) (Con)

Will the cabinet secretary set out any additional rights and protections that disabled children will receive in line with article 23?

John Swinney

Article 23 gives young people the opportunity to ensure that their own particular interests and perspectives can be fully respected. One criticism of the UNCRC is that it is not precise in all its language. I think that that is a good thing, because it leaves scope for Parliament and the courts to take a maximalist approach in how they protect the rights of children and young people, particularly the children and young people with disabilities whom Mr Balfour referred to.

Joan McAlpine (South Scotland) (SNP)

Does the cabinet secretary agree that it is crucial that this Parliament takes an outward-looking and international approach to human rights through UNCRC incorporation, particularly at a time when the UK Government is diminishing its international standing by leaving the EU and by even threatening to withdraw from the European convention on human rights?

John Swinney

One of the great strides forward that have been taken during my lifetime has been the enormous progress that has been made on human rights. Much of that has emanated from the thinking that has come from the European convention on human rights and its significant influence on the Human Rights Act 1998 in the United Kingdom.

I hope that the incorporation of the convention into Scots law will be viewed as a signal by this Government and this Parliament of our determination to take a human rights-based approach to all of our policies, our outlook and our interventions. It sets out who we are and what we aspire to do in society, and it respects our values, which are enshrined on the mace of the Parliament that sits in front of us and the Presiding Officer, and which reflect the country that we want to be.

The Deputy Presiding Officer

That concludes questions on the statement by John Swinney.

I remind members that social distancing measures are in place across the chamber and the campus. Members should take care to observe those measures, particularly when entering and exiting the chamber.