United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill: Stage 3

– in the Scottish Parliament on 16th March 2021.

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Photo of Kenneth Macintosh Kenneth Macintosh Labour

The next item of business is stage 3 proceedings on the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill. In dealing with the amendments, members should have before them the bill as amended at stage 2, the marshalled list of amendments and the groupings of amendments. As usual, the division bell will sound and proceedings will be suspended for five minutes for the first vote of the afternoon. The period of voting for each division will be one minute. Any member who wishes to speak in a debate on a group should press their request-to-speak button as soon as I call that group.

Members should now refer to the marshalled list.

The Presiding Officer:

Group 1 is on regulations under section 3. Amendment 1, in the name of the Cabinet Secretary for Education and Skills, is grouped with amendments 2 and 36.

Photo of Maree Todd Maree Todd Scottish National Party

The schedule to the bill sets out the UNCRC requirements, which consist of text from the convention and the first two optional protocols. Section 3 gives the Scottish ministers the power to modify the schedule in specific ways by regulation. It is important that the Scottish ministers can modify the schedule in line with any changes to the UNCRC or its optional protocols, or when an optional protocol is ratified by the United Kingdom. It may also be appropriate to modify the schedule should the powers of the Parliament change in the future—for example, by adding articles of the convention that are not currently included due to reasons of legislative competence.

The power is subject to the affirmative procedure, so there will be a high degree of scrutiny regarding its use.

At stage 2, I supported an amendment of Alexander Stewart’s to require consultation in relation to regulations made under section 3. Amendments 1 and 2, which I will move, are minor drafting changes to make the effect of that provision clearer.

I support Ruth Maguire’s amendment 36, which places on the Scottish ministers the same consultation requirements as are included elsewhere in the bill. That will require ministers to consult the Children and Young People’s Commissioner Scotland and the Scottish Human Rights Commission prior to using the section 3 power, ensuring consistency between the duty to consult in section 3 and similar provision elsewhere in the bill.

I urge members to support amendment 1 and amendments 2 and 36.

I move amendment 1.

Photo of Ruth Maguire Ruth Maguire Scottish National Party

The schedule to the bill sets out the UNCRC requirements, which consist of text from the convention and the first two optional protocols. Section 3 gives the Scottish ministers the power to modify the schedule in specific ways by regulation. Amendment 36 builds on the amendments that were made at stage 2 by requiring consultation with the

Children and Young People’s Commissioner Scotland and the Scottish Human Rights Commission when the Scottish ministers make regulations under section 3, in line with the other consultation requirements in the bill. That synergy and consistency seem both appropriate and necessary. I welcome the minister’s support for amendment 36.

Photo of Jamie Greene Jamie Greene Conservative

I confirm briefly that the Scottish Conservatives will support all the amendments in group 1, and I specifically commend Ruth Maguire’s amendment 36. Although it is an Equalities and Human Rights Committee bill, the Education and Skills Committee has heard frequently from the commissioner, especially on issues involving the effects of lockdown measures on children and young people. The commissioner’s inclusion in consultation is welcome, and I note that the Government has done that at stage 3.

We may oppose a number of amendments, which I will speak to as and when we get to them. However, we will be pleased to support the majority of the amendments this afternoon.

Amendment 1 agreed to.

Amendment 2 moved—[Maree Todd]—and agreed to.

Amendment 36 moved—[Ruth Maguire]—and agreed to.

The Presiding Officer:

Group 2 is on interpretation of the UNCRC requirements. Amendment 3, in the name of the Cabinet Secretary for Education and Skills, is grouped with amendments 4, 5, 16 to 19, 23 and 24.

Photo of John Swinney John Swinney Scottish National Party

It is of fundamental importance that the requirements of the United Nations Convention on the Rights of the Child that are incorporated by the bill are interpreted and applied within the full context of the UNCRC itself, including the preamble and excluded provisions that cannot be incorporated within the powers of the Parliament at the present time.

It is also important that the requirements are interpreted and implemented using the rich sources of authoritative but non-binding materials produced by the UN Committee on the Rights of the Child, when relevant. The courts can and do, as a matter of course, consider a wide range of sources of interpretation that are relevant to the cases that come before them. The purpose of section 4 is to bring transparency to, and to recognise the significance of, sources that are fundamental to the understanding, interpretation and implementation of children’s rights. The intention is that the bill should promote understanding of those sources and that their use should become routine practice among public authorities, courts and practitioners in support of children and young people and the fulfilment of their rights.

That is why we sought to address the matter at stage 2. At that stage, members of the Equalities and Human Rights Committee also made amendments to section 4. As we indicated during the stage 2 debates, we are concerned that some of those amendments might have unintended consequences. In particular, ministers are concerned that, although section 4(1), as amended at stage 2, requires the courts to take sources into account only when they consider them to be relevant, the courts will first have to consider all the sources to determine what is and is not relevant. That risks placing a disproportionate burden on litigants and the courts, and it could therefore delay the achievement of effective remedies for breaches of children’s and young people’s rights. The changes to section 4 also risk the sources that are included in that section being interpreted in a way that is not intended. The sources are widely understood to be authoritative sources of interpretation, but they are not legally binding.

Since stage 2, the Scottish Government has continued to work with key stakeholders, including the Children and Young People’s Commissioner Scotland and Together, the Scottish alliance for children’s rights, to better understand what those stakeholders were seeking to achieve and to explore how best to achieve it. We have lodged a range of amendments that we understand carry stakeholder support, which will restore—and improve—the approach in section 4 and elsewhere in the bill as introduced.

Amendment 3 will restore the original drafting in section 4(1), to avoid the unintended consequence that I set out. That will allow courts to retain discretion in relation to whether any sources should be taken into account in cases that come before them.

Since stage 2, key stakeholders including the children’s commissioner and Together have expressed interest in expanding the list of sources that is set out in section 4(2). We are clear that the UNCRC requirements should be interpreted in their full international context. It is important that we provide for that in a way that is not exclusive or prescriptive and does not prevent the list of sources from being added to in the future.

Amendments 4 and 5 seek to achieve that aim. Amendment 4 will remove new paragraph (g) of section 4(2), and amendment 5 will remove the detailed list at subsection (5) of section 4. Paragraph (g) of section 4(2) will be replaced by a much broader provision, to include

“other international law and comparative law.”

That will ensure that it is clear in the bill that there is a rich tapestry of global human rights instruments and law that can assist courts, practitioners and public authorities in the interpretation and implementation of children’s rights under the UNCRC, whether that assistance comes from the United Nations, the Council of Europe or other jurisdictions.

I am delighted that the recommendations of the national task force for human rights leadership were published on Friday. After the forthcoming elections, the Parliament will have the opportunity to consider how best to deliver a human rights framework for all. Our work on the bill provides a strong foundation for that work and recognises the intersectionality of human rights.

It will be important that children’s rights under the bill are considered in the context of wider international human rights obligations under, for example, the Convention on the Elimination of All Forms of Discrimination Against Women and the Convention on the Rights of Persons with Disabilities, which have a direct impact on the fulfilment of children’s rights under the UNCRC. Amendments 4 and 5 will ensure that that wider international context and intersectionality are provided for, based on current relevant conventions and potential conventions to come.

As amended at stage 2, sections 12 and 13 place requirements on the Scottish ministers to publish a children’s rights scheme and to review the scheme and its operation every year. It is intended that those mechanisms will afford transparency and accountability to the steps that ministers take or plan in relation to the compatibility duty in section 6 and to steps that are taken to give better and further effect to the rights of children.

Amendments 16 to 19 and 23 and 24 will therefore provide for the consideration of relevant international or comparative law in relation to sections 12 and 13, thereby creating an approach that is consistent with that of section 4. They will ensure that the Scottish ministers consider the sources that amendment 4 will add to section 4 when they make, amend or report on the children’s rights scheme.

I welcome the fact that members of the Equalities and Human Rights Committee encouraged us to take a closer look at our approach to those key matters, particularly the intersectionality of rights, laws and conventions. I hope that what the amendments in group 2 will put in place gives members confidence that we have the right approach and that members will therefore support all the amendments in the group.

I move amendment 3.

Photo of Jamie Greene Jamie Greene Conservative

The amendments in this group would effectively reverse some of the changes to the bill that were made by majority in the committee at stage 2, and I am not entirely convinced that the case has been made for the removal of those changes. In amendment 3, for example, it may seem a small thing to change “must” to “may”, but the effect of doing so would be to weaken the bill’s ability to allow courts the flexibility needed to consider every aspect of the UNCRC and related texts. If the UNCRC is to be incorporated into Scots law as fully as possible, it is only right that the courts must consider both the UNCRC and any related texts. That is the key, so far as it is relevant to the interpretation of the UNCRC. Therein lies the get-out. It is down to the courts’ opinions and subjectivity which section 4(2) issues they take into account.

Amendments 4 and 5 also seek to undo improvements that were made to the bill at stage 2. The amendments would remove explicit references to the United Nations treaty, general comments, concluding observations and comparative law. We feel that the inclusion of those references strengthens this section of the bill by ensuring that the courts adopt a comprehensive approach in their interpretation of the UNCRC requirements.

The cabinet secretary mentioned wanting to have a rich tapestry of sources available. He will not get a rich tapestry by removing things from the bill in the manner suggested, so we will vote against all the amendments in the group.

Photo of John Swinney John Swinney Scottish National Party

I will briefly address the issues that Jamie Greene has raised. He has cited particularly the provisions in amendment 3, but I do not accept his interpretation of the amendment. We are trying to recognise the importance of the courts being able to take the widest possible view on sources of interpretation, so that they can consider any issues that are presented to them. We are trying to take the most open approach possible in order to enable the courts to exercise the widest possible scope and, as a consequence, take into account the broadest range of factors in determining what would be appropriate sources of interpretation. That is the basis on which the Government has lodged the amendments.

My general point on the group is that we are specifically expanding the range of sources that can be included to include other international law and comparative law. I hope that that demonstration of further steps that have been taken to expand sources provides the necessary reassurance to Parliament that the Government’s intention in section 4 is to enable the broadest perspective to be taken in the interpretation of the requirements of the convention.

The Presiding Officer:

The question is, that amendment 3 be agreed to. Are we agreed?

Members:

No.

The Presiding Officer:

We are not agreed. As this is the first division of the afternoon, I suspend the meeting for five minutes to call members to the chamber and to allow members who are online to access the voting app.

16:23 Meeting suspended.

16:30 On resuming—

We move to the division on amendment 3.

The vote is now closed. Members should please let me know if they could not vote.

Division number 1 United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill: Stage 3

Aye: 85 MSPs

No: 25 MSPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Presiding Officer:

The result of the division is: For 85, Against 25, Abstentions 0.

Amendment 3 agreed to.

Amendment 4 moved—[John Swinney].

The question is, that amendment 4 be agreed to. Are we agreed?

Members:

No.

The Presiding Officer:

There will be a division.

The vote is closed. Members should please let me know if they could not vote.

Division number 2 United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill: Stage 3

Aye: 86 MSPs

No: 25 MSPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Presiding Officer:

The result of the division is: For 86, Against 25, Abstentions 0.

Amendment 4 agreed to.

Amendment 5 moved—[John Swinney].

The question is, that amendment 5 be agreed to. Are we agreed?

Members:

No.

Division number 3 United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill: Stage 3

Aye: 83 MSPs

No: 26 MSPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Presiding Officer:

The result of the division is: For 83, Against 26, Abstentions 0.

Amendment 5 agreed to.

The third group of amendments is on the meaning of public authorities. Amendment 6, in the name of John Swinney, is grouped with amendments 7 to 9.

Photo of Maree Todd Maree Todd Scottish National Party

Section 6 is critical to the bill: it contains the central compatibility duty, which will require, to the fullest extent possible within the Parliament’s powers, that public authorities do not act incompatibly with the UNCRC requirements set out in the schedule. Section 6, therefore, needs to be as strong and accurate as it can be.

The definition of a “public authority” in section 6(1) is intentionally wide and will include the full range of public authorities that it is possible to cover. Section 6(3) provides that that includes, in particular, the Scottish ministers, a court or tribunal and

“any person certain of whose functions are functions of a public nature”.

That final element is intentionally broad and is designed to capture the wide variety of public functions that are, and may be in the future, undertaken by those other than core public authorities.

I understand why Mary Fee sought to include the further provision at section 6(3)(a)(iv) and the intent behind her amendment at stage 2. We all want it to be crystal clear and for there to be no dubiety that all public bodies that have functions in relation to the care of children should be included in the definition of a public authority in the bill. I assure Mary Fee and other members that those functions were already captured by the wording of section 6 prior to the amendment, and will continue to be captured without including the provision in the bill.

Far from achieving the desired effect, the provision potentially has the opposite effect, in that it may suggest that other functions that are not specifically named are not included, and that could create uncertainty about the otherwise wide application of the definition of a “public authority” in section 6. That is why we have lodged amendment 7. I hope that members will understand those reasons and support amendment 7.

There are also potential unintended consequences of paragraph (b) of section 6(3A), which risks unintentionally narrowing the scope of section 6(3A)(a) and therefore the compatibility duty more broadly. However, I understand the intent behind that provision. I have been clear that it is the Scottish Government’s intention that the requirement not to act incompatibly with the UNCRC requirements should extend to others where they are carrying out functions under contracts or other arrangements with public authorities. That is the effect of section 6(3A)(a). I do not believe that that should be subject to the further qualification in section 6(3A)(b) that the core purpose is the provision of a service that fulfils children’s rights. That could introduce confusion in relation to the scope of the UNCRC requirements in contracting out arrangements, which is not what is intended. Amendment 8 seeks to remove that provision and amendment 9 seeks to replace part of it.

Section 6 is broadly modelled on an equivalent provision in section 6 of the Human Rights Act 1998. However, the bill as amended at stage 2 seeks to go further than the 1998 act by making additional provision—in section 6(3A)(a)—in relation to contracting out arrangements. That reflects the fact that, for some years now, public services in Scotland have been provided by a wide range of core and hybrid public authorities, third sector bodies and private providers.

There is concern among stakeholders that the courts’ interpretation of what constitutes a function “of a public nature” under the 1998 act has become overly narrow. I have sympathy with that concern, which is why the Scottish Government lodged an amendment at stage 2 to introduce what is now section 6(3A)(a) and make it clear that functions that are

“carried out under a contract or other arrangement with a public authority” fall within the scope of the compatibility duty in section 6. Amendment 9 seeks to provide certainty that how a function is funded should not determine its classification as a function “of a public nature”.

Amendment 6, which is the other Government amendment in the group, is a minor amendment to improve the wording of section 6.

I hope that members accept that amendments 6 to 9 are helpful as they will apply greater clarity and certainty to this vital duty, and that members will support them.

I move amendment 6.

Photo of Jamie Greene Jamie Greene Conservative

I thank the minister for clarifying the intention behind amendments 6, 8 and 9, which will make helpful changes to the bill. However, we still have difficulties with amendment 7. Let us take a look at its effect.

Section 6 states:

“It is unlawful for a public authority to act in a way which is incompatible with the UNCRC”.

It goes on to say what the term “public authority” includes, but the Government’s amendment 7 seeks to remove the phrase

“all public bodies who have functions in relation to the care of a child”, which was included at stage 2. The argument has been made that its inclusion is in some way restrictive rather than inclusive. The Government argues that it somehow narrows the definition of “public authority”, but we would argue that it widens it and makes it inclusive.

Perhaps “all public bodies” would have been a better phrase, but we have the wording that was inserted at stage 2, which the committee agreed to, and we believe that it should remain. I am not convinced that the case has been made for its removal. Surely

“all public bodies who have functions in relation to the care of a child” should be encompassed in what is the very essence of the bill. As was stated, section 6 is one of the most important sections of the bill. Perhaps the minister could explain when she sums up why she believes that removal of the phrase

“all public bodies who have functions in relation to the care of a child” is necessary.

The Presiding Officer:

I invite the minister to wind up.

Photo of Maree Todd Maree Todd Scottish National Party

I am grateful to Mr Greene for his support for some of the amendments in the group. We need section 6 to be as strong and accurate as it can be.

Amendments 7 and 8 address the concern that the latest provision suggests that functions that are not specifically named are not covered by the duty not to act incompatibly. The concern is that the specific provision in relation to the care of children undermines the general application of the compatibility duty to all functions of public authorities. It introduces the idea that children’s rights are relevant only in certain children’s services, which is not at all desirable.

Photo of Jamie Greene Jamie Greene Conservative

Again, the tone of that is that the provision somehow restricts the application of the bill. The phrase that the Government is trying to remove is

“all public bodies who have functions in relation to the care of a child”.

There is nothing restrictive about that.

Photo of Maree Todd Maree Todd Scottish National Party

It is by definition restrictive because it says

“who have functions in relation to the care of a child”.

We are trying to produce a bill that will introduce compatibility duties on all public authorities and the idea that children’s rights are relevant in every sphere of public life and society.

An example that I would give is the digital environment. Arguments are put forward that children do not need to be protected in digital areas that are not targeted at children. I would argue that children need to be protected entirely in the digital environment. The compatibility requirement should not be targeted just at those areas that are specifically directed at children; it needs to be broader than that. Children are everywhere, which is why we are concerned about the restrictive nature of the provision and why we are keen to remove what we perceive to be an unintended restriction. In addition, Mary Fee’s amendment introduced the term “public bodies”, which added a complexity, as that term is not used elsewhere in the bill.

To guard against a narrow interpretation of what constitutes a function of a public nature, amendment 9 provides certainty that how a function is funded should not determine its classification as a function of a public nature. Again, I would be grateful for the chamber’s support for that amendment.

Amendment 6 agreed to.

Amendment 7 moved—[Maree Todd].

The Presiding Officer:

The question is, that amendment 7 be agreed to. Are we agreed?

Members:

No.

The Presiding Officer:

There will be a division.

The vote is closed. Members should please let me know if they were not able to vote.

Division number 4 United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill: Stage 3

Aye: 84 MSPs

No: 25 MSPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Presiding Officer:

The result of the division is: For 84, Against 25, Abstentions 0.

Amendment 7 agreed to.

Amendment 8 moved—[Maree Todd]—and agreed to.

Amendment 9 moved—[John Swinney]—and agreed to.

Group 4 is on regulations under section 7. Amendment 10, in the name of the cabinet secretary, is grouped with amendments 11 to 13 and 37.

Photo of John Swinney John Swinney Scottish National Party

Section 7 makes provision about proceedings in relation to acts of public authorities that are incompatible with the UNCRC requirements. As amended at stage 2, section 7(5) places a duty on the Scottish ministers to do certain things by regulations in relation to remedies for tribunals—that is, adding to the relief or remedies that a particular tribunal can grant, the grounds on which they can be granted and the orders that the tribunal may make.

The duty on the Scottish ministers applies where they consider that regulations are necessary to ensure that the tribunal can provide appropriate remedies for breaches of the compatibility duty in the bill. That is intended to ensure that, where a tribunal does not have the power to provide an appropriate remedy for a breach of the compatibility duty, the Scottish ministers can take steps to provide for that quickly, without having to resort to primary legislation.

As the minister set out at stage 2, the section 7(5) power is subject to parliamentary scrutiny through the affirmative procedure, which reflects the fact that the making of regulations under section 7(5) cannot be guaranteed by the Scottish ministers. Amendments 10 to 13 adjust that provision, so that the duty on ministers is instead to lay draft regulations before the Parliament in the circumstances set out in section 7(5).

The technical amendments in this group seek to provide absolute clarity and accuracy in the bill about the purpose and effect of the added provisions.

I move amendment 10.

Photo of Ruth Maguire Ruth Maguire Scottish National Party

Section 7(5) of the bill requires that the Scottish ministers must, in certain circumstances, lay regulations to add to the remedies that a particular tribunal can award. The requirement will apply where the Scottish ministers consider it necessary to ensure that the tribunal can award an appropriate remedy where a public authority has acted incompatibly with the UNCRC requirements.

Amendments were made at stage 2 that require the Scottish ministers to consult

“such persons as they consider appropriate” in making such regulations. Amendment 37 seeks to apply greater clarity and consistency on who should be consulted. It will further provide in section 7(5A) that specific consultation is required with the Commissioner for Children and Young People in Scotland and the Scottish Commission for Human Rights, in line with the other consultation requirements in the bill.

I welcome the Scottish Government’s support for the amendment.

Photo of John Swinney John Swinney Scottish National Party

I simply place on the record that the Government fully supports Ruth Maguire’s amendment, which will place the same consultation requirements on the use of that power that are included elsewhere in the bill. I urge members to support amendments 10 and 37.

Amendment 10 agreed to.

Amendments 11 to 13 moved—[John Swinney]—and agreed to.

Amendment 37 moved—[Ruth Maguire]—and agreed to.

The Presiding Officer:

Group 5 is on guidance on part 2. Amendment 38, in the name of Mary Fee, is the only amendment in the group.

Photo of Mary Fee Mary Fee Labour

The issue of guidance has been of interest to many stakeholders and many members across all parties throughout the consideration of the bill, which prompted me to lodge my amendments in relation to that at stage 2. However, I was happy to listen to the minister and not to press those amendments.

As with much else in the bill, the issue has been proceeded in a spirit of co-operation and consensus. I am pleased that we have been able to do that in making the provision of guidance statutory.

I acknowledge and welcome the fact that the Scottish Government always intended to prepare and publish guidance, but it is important that that commitment is made a requirement and that it is clear through the bill that guidance will be made available in support of effective implementation. Amendment 38 will deliver that. It will ensure that ministers are required to issue guidance in support of part 2 of the bill and that there is wide consultation, including with children and young people, on what is contained in the guidance.

Although guidance will not replace the responsibility that all public authorities will have to ensure that their actions are compatible with children’s rights, the amendment will strengthen the bill and ensure that public authorities are supported to fulfil the rights of children and young people.

I hope that members across the chamber agree with me and will support the amendment.

I move amendment 38.

Photo of Maree Todd Maree Todd Scottish National Party

I thank Mary Fee for not pressing her amendments in relation to guidance at stage 2 and for allowing us the time to discuss the issues with her and stakeholders.

It has always been the Scottish Government’s intention that a range of guidance and materials would be developed in partnership to support effective implementation of children’s rights. This is, after all, ground-breaking legislation, and there will be a lot to think about in how we can best go about implementing its duties. Authorities and individuals will rightly need help and support on that. Officials are already engaging closely with public bodies and other key stakeholders to ensure that they are supported to realise children’s rights in practice. That will be fundamental to the bill’s success.

However, as I said at stage 2, Government guidance cannot and should not replace the responsibility that will rest on all public authorities to ensure that they comply with their duty under section 6. Guidance is not a substitute for considering the rights of children in all circumstances or for public authorities being proactive in their consideration of what that means for the delivery of their services to children and young people. It is only through a proactive culture of everyday accountability for children’s rights across public services that we can ensure that children’s rights are fully protected, respected and fulfilled.

I thank Mary Fee for her co-operation and welcome amendment 38 to require the Scottish ministers to issue guidance to support the implementation and operation of part 2 of the bill.

Amendment 38 agreed to.

The Presiding Officer:

Group 6 is on the children’s rights scheme. Amendment 14, in the name of the cabinet secretary, is grouped with amendments 39, 15, 40, 41, 20, 21 and 22.

Photo of Maree Todd Maree Todd Scottish National Party

The children’s rights scheme, which is provided for in section 11, is a crucial and fundamental mechanism to promote and deliver the aims and ambitions that underpin the bill to proactively change the culture in Scotland. I welcome the significant and positive engagement from members and stakeholders with the scheme’s provisions throughout the bill process. We all want to see the scheme strengthened where possible, particularly in relation to the list of matters that are included in section 11(3).

On the Government amendments in group 6, amendment 14 strengthens section 11(3)(a), and recognises the important role that children’s advocacy services can play in ensuring that children are able to participate in the making of decisions that affect them. If we want children to participate in making decisions that affect them, we must recognise that they require support to do so, particularly when they have additional support needs or face challenges or barriers to knowing their rights. Amendment 14 strengthens the scheme in that respect.

Amendment 15 will ensure that there is additional transparency around the protection of children’s rights in private settings. The bill ensures that there is direct accountability, through the compatibility duty in section 6, in relation to all public functions. This reflects the fact that the UNCRC, as do other international human rights treaties, places obligations on states to ensure that rights are respected, protected and fulfilled.

The compatibility duty in section 6 will mean that ministers will be required to take all measures required by the UNCRC requirements, which could include legislative measures, to ensure that children’s rights are protected in private settings. Amendment 15 adds to that by seeking to provide transparency in relation to that dimension of the duty on ministers, and in relation to steps taken by ministers to give better and further effect to the rights of children in private settings. In implementing that requirement through the children’s rights scheme, the Scottish Government will consider best practice globally and will be guided by, among other things, the UN’s “Guiding Principles on Business and Human Rights”.

Amendments 20 and 21 are technical and I hope that their purpose is clear. They ensure consistency between section 11(1) as amended at stage 2 and section 13(3), and they will require that reports about the children’s rights scheme under section 13(3) must also include a summary of the actions taken by the Scottish ministers for the purpose of

“securing better or further effect of the rights of children” in the reporting period.

Amendment 22 is a minor technical amendment that improves the wording of section 13(3).

On amendment 39, the Scottish Government supported the inclusion of section 11(3)(aa) in the bill at stage 2, and we are happy to support amendment 39, which seeks to provide the further clarity that Together and the children’s commissioner are seeking, not least through the annual scrutiny and associated reporting requirements for the scheme. We can all agree that we should all be doing everything that we can to identify and address the needs of children who are most at risk of their rights being unfulfilled.

The Scottish ministers also support amendment 40, and I pay tribute to all that Mark Griffin has done during the current and previous parliamentary sessions to promote the communication support needs of children and young people. The Scottish ministers will be happy to help to give effect to amendment 40 in practice by ensuring that information on how to communicate inclusively with children and young people will be included in all relevant guidance issued in support of the bill, and we will of course involve key stakeholders in that work.

I move amendment 14 and encourage members to support all the amendments in this group.

Photo of Joe FitzPatrick Joe FitzPatrick Scottish National Party

I think that all the committee members agreed with the intention of the stage 2 amendment on this issue that was agreed to, if not on the execution. As drafted, it did not quite achieve what it set out to do.

Therefore, amendment 39 seeks to ensure that there is good transparency and accountability through the children’s rights scheme for steps taken by the Scottish ministers to “identify and address” the needs of children who are most at risk of their rights being unfulfilled.

To ensure that children’s rights are realised for all children and young people, it is essential that scrutiny in relation to the barriers faced by those whose rights are most at risk of being unfulfilled is prioritised. Amendment 39 has been developed through co-working with members of Together. Together said:

“This amendment is about making sure that we understand and recognise the rights issues facing children and young people from specific population groups.

This will include children and young people with learning disabilities, care experienced children and young people and children and young people who are impacted by parental imprisonment”.

Ensuring that the experience of those children and young people is reflected in the children’s rights scheme is critical. Those children can face considerable barriers to accessing their human rights and we can see evidence of that when we think about the experience and life opportunities of children and young people with learning disabilities. For example, recent findings from the Scottish Learning Disabilities Observatory showed that premature mortality was 12 times higher for children and young people with learning disabilities than for the rest of the population. That is simply unacceptable.

Amendment 39 is therefore important because it will ensure that there will be a focus in the children’s rights scheme on the barriers that are faced by those children and young people whose rights are most at risk and on the steps that ministers plan to take to address that. That was the intention of the stage 2 amendment, but its drafting did not quite achieve that. That is what my amendments correct. Amendment 41 is a technical amendment with the purpose of removing a redundant definition.

As was conveyed by the minister in relation to amendment 14, I am pleased to support it. The provision of advocacy or other support services will be critical for some children to enable them to participate in decisions that are made about them. In a similar vein, I also support Mark Griffin’s amendment 40, which will ensure that children with the most complex support needs are able to receive inclusive communication. We should not underestimate the difference that having such statutory duties and requirements in place will make for some children. I am also happy to support the other amendments in the group.

The Presiding Officer:

Thank you, Mr FitzPatrick. It was a slightly bad line, but I think that most members will have been able to follow that.

Photo of Mark Griffin Mark Griffin Labour

We will be supporting all the amendments in this group.

Amendment 40 in my name is sponsored by the Health and Social Care Alliance Scotland and deafscotland, as well as Together. I am grateful for the discussions that we have had with the Government and to have the support of ministers today. Members will be aware that inclusive communication amendments have been included in other legislation—the Social Security (Scotland) Act 2108, the Consumer Scotland Act 2020 and the Coronavirus (Scotland) (No 2) Act 2020. Each placed duties on the Scottish Government to use inclusive communication while exercising its functions under those acts.

Although inclusive communication is required directly and indirectly in the UNCRC, the further duty to use and promote inclusive communication introduced by amendment 40 will realise the convention’s objectives and it ties in with articles 2, 12, 13, 17 and 29. However, because the bill works differently, so too does the amendment. It makes provision for inclusive communication explicit in the bill through the requirements of the children’s rights scheme. Communicating in a way that is inclusive of all people, particularly those who have a disability or specific communication needs, means that information can be better received, understood and accepted by the widest audience. Doing that recognises that people understand information and express themselves in different ways.

Although there has been some discussion about a wider inclusive communications bill to put that principle into Scots law, I hope that members will support amendment 40 to secure its inclusion in this important piece of legislation.

Photo of Jamie Greene Jamie Greene Conservative

We welcome the children’s rights scheme that is included in the bill. However, I want to speak against amendments 39 and 41, the latter being a technical amendment that is consequential to amendment 39. This is, in effect, about a provision that was added by an amendment at stage 2, which reads:

The Scheme must ... ensure that children who have one or more protected characteristics or are in a situation of vulnerability have their rights respected, protected and fulfilled”.

I find it hard to disagree with any of that. I believe that Mr FitzPatrick said—although it was quite difficult to hear his argument—that, as drafted, it does not achieve what it sets out to achieve. I think that he has failed to make the case as to why it fails to set out what he wants to do.

Mr FitzPatrick’s amendment 39 removes those lines and inserts wording that I also find it hard to disagree with. However, that begs the question of why the wording that Mr FitzPatrick has suggested replaces, instead of adds to, what is already in the stage 2 version of the bill. If it was simply adding the wording, as he recommended, we would be minded to support amendment 39, but it does not do that—it replaces the wording. Therefore, we will not support it.

Photo of Alex Cole-Hamilton Alex Cole-Hamilton Liberal Democrat

I wish to speak in favour of all the amendments in the group, but particularly amendment 40, in the name of Mark Griffin. That he has submitted it speaks to Mark’s contribution to the chamber over the years in terms of his dedication to speech and language. It speaks to the values of the bill that we are passing, and in particular article 12, which is about hearing the voice of the child.

Communication is still a problem in Scotland. Seeking out, listening to and understanding the views of the people who we are doing things to and around has always been a problem. The special rapporteur under the United Nations Convention on the Rights of People with Disabilities often comes back and says that we should be doing more, particularly around mental welfare, including to get the views of the people who we are trying to assist. I absolutely support Mark Griffin’s amendments, and the Liberal Democrats will support all the amendments in the group.

The Presiding Officer:

I call the minister to wind up on the group.

Photo of Maree Todd Maree Todd Scottish National Party

I think that amendment 14 strengthens the children’s rights scheme and recognises the important role that children’s advocacy services can play in ensuring that children are able to participate in the making of decisions that affect them.

Amendment 15 requires ministers to set out the steps that they have taken to give better and further effect to the rights of children in private settings. I am grateful for all the parties’ support on those amendments.

Amendments 39 and 41, on children whose rights are at risk of not being fulfilled, concern children who have protected characteristics or are in “a situation of vulnerability”—that was the wording that was passed at stage 2. We think that that wording has certain failings and challenges, although we support its intent, and we are keen to amend it. Amendment 39 simply seeks to achieve better wording for the same intent. It has the support of key stakeholders and of Mary Fee, who pressed the stage 2 amendment. I would be grateful for members’ support for those amendments, too.

Amendment 14 agreed to.

Amendment 39 moved—[Joe FitzPatrick].

The Presiding Officer:

The question is, that amendment 39 be agreed to. Are we agreed?

Members:

No.

The Presiding Officer:

There will be a division. This is a one-minute division.

That vote is now closed. Please let me know if you were not able to vote.

Photo of Linda Fabiani Linda Fabiani Scottish National Party

On a point of order, Presiding Officer. Something went wrong with the voting app, and it would not work. I would have voted yes.

The Presiding Officer:

Thank you, Ms Fabiani. You would have voted yes, and I will make sure that your vote is noted.

Photo of Bob Doris Bob Doris Scottish National Party

On a point of order, Presiding Officer. I was unable to vote on amendment 39. I would have voted yes.

The Presiding Officer:

You would have voted yes, Mr Doris. Thank you.

Photo of Bill Kidd Bill Kidd Scottish National Party

On a point of order. I would have voted yes. I had a problem with the voting app.

The Presiding Officer:

You would have voted yes, Mr Kidd. That will be added.

Division number 5 United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill: Stage 3

Aye: 87 MSPs

No: 24 MSPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Presiding Officer:

The result of the division is: For 87, Against 24, Abstentions 0.

Amendment 39 agreed to.

Amendment 15 moved—[John Swinney]—and agreed to.

Amendment 40 moved—[Mark Griffin]—and agreed to.

Amendment 41 moved—[Joe FitzPatrick].

The question is, that amendment 41 be agreed to. Are we agreed?

Members:

No.

Division number 6 United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill: Stage 3

Aye: 86 MSPs

No: 24 MSPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Presiding Officer:

The result of the division is: For 86, Against 24, Abstentions 0.

Amendment 41 agreed to.

Section 12—Procedure for making, amending and remaking the Scheme:

Amendment 16 moved—[John Swinney]—and agreed to.

Section 13—Reviewing and reporting on the Scheme:

Amendments 17 to 24 moved—[John Swinney]—and agreed to.

The Presiding Officer:

Group 7 is on i mpact assessments. Amendment 42, in the name of Fulton MacGregor, is grouped with amendments 25 to 29.

Photo of Fulton MacGregor Fulton MacGregor Scottish National Party

It is a huge honour to speak to my amendment 42 at this historic moment for our Parliament and our children and young people.

I welcome subsections (3A) and (3B), which were added to section 14 at stage 2, and under which

“the Scottish Ministers must prepare a child rights and wellbeing impact assessment” in relation to decisions to restrict the delivery of in-person education to children.

The Covid-19 pandemic has brought previously unimaginable restrictions to our everyday lives, including, of course, the closure of schools for two separate significant periods. Although that has been necessary for public health reasons, we cannot underestimate the potential short-term and longer-term impacts on our young people. That is especially true when we are talking about children’s rights.

I know, and welcome, that the rights of children and young people are at the heart of decisions that the Scottish Government has taken, and continues to take, in relation to managing the impact of coronavirus on children and young people. That point is evident in the prioritisation of in-person learning as we move out of restrictions—a prioritisation for which I know many members and I are grateful.

I also welcome that the Scottish Government must publish child rights and wellbeing impact assessments when they are required to be prepared in relation to section 14 provisions more generally. It makes sense, therefore, to provide for their publication under the section 14 provisions, which amendment 42 seeks to achieve. The amendment will ensure that section 14(3)(a) is in line with the rest of section 14 so that, in addition to preparing such impact assessments, ministers must also publish them.

I support the amendments in the name of the cabinet secretary in the group.

I move amendment 42

The Presiding Officer:

I invite the cabinet secretary to speak to amendment 25 and the other amendments in the group.

Photo of John Swinney John Swinney Scottish National Party

As the minister set out during stage 2, ministers are supportive of a provision to require ministers to prepare child rights and wellbeing impact assessments in relation to decisions about school closures in the context of the Covid pandemic. The amendments that I have lodged are intended to make the provision work more effectively.

Amendments 25 and 27 make it clear that the duty that is imposed on ministers to prepare that category of child rights and wellbeing impact assessments applies only in relation to decisions that the ministers take and strategies that the ministers prepare. I am concerned that the references to school age in those provisions might be taken to mean that decisions that affect the in-person education of pupils above school age would not be in their scope, which would have the effect of excluding decisions that affect 16 and 17-year-olds from coverage. I do not imagine that to have been the intended effect of the provision; therefore, amendments 26 and 28 will make its scope clearer so that the provision covers all children at school.

I support Fulton MacGregor’s amendment 42, which will build in the requirement to publish—not just to prepare—that category of child rights and wellbeing impact assessments. I will press amendment 25 and urge members to support it, along with amendments 26 to 29 and Mr MacGregor’s amendment 42.

The Presiding Officer:

Does Mr MacGregor wish to add anything?

Photo of Fulton MacGregor Fulton MacGregor Scottish National Party

I have nothing to add.

Amendment 42 agreed to.

Amendments 25 to 29 moved—

[

John Swinney

]

—and agreed to.

The Presiding Officer:

Group 8 is on listed authorities, their functions and reporting arrangements. Amendment 43, in the name of Clare Adamson, is grouped with amendments 44, 30 and 45.

Photo of Clare Adamson Clare Adamson Scottish National Party

Section 15 of the bill requires listed authorities to report on the actions that they have taken to meet the UNCRC requirements, and on what steps they have taken more widely towards the progressive realisation of children’s rights. In order to drive the proactive culture change that we all want, it will be important that those reports are acted on as quickly as possible. Although listed authorities will, of course, be responsible for taking the actions that the reports identify, it will be important that ministers are aware of those reports and of their contents.

Amendments 43 and 44 will ensure that the reports from listed authorities are shared with Scottish ministers

“as soon as practicable after” they are published, so that the Scottish Government is aware of their contents. I believe that the provisions will further support the proactive realisation of children’s rights that the bill promotes.

I understand that there are some issues with revisions under the Children and Young People (Scotland) Act 2014. I was a member of the committee that dealt with that bill. There are similar reporting duties for its listed authorities but without a corresponding duty to send a copy to ministers. It seems to be obvious that it would be in everyone’s interests for that to happen as a matter of course, so I am not sure why it does not. To make that provision in statute would make it clear what is expected of listed authorities.

I am keen to hear Mary Fee’s arguments in support of amendment 45. I pause for a moment to commend Mary Fee for her commitment to children’s rights, but also to—[

Inaudible

.]—and particularly Gypsy Travellers during her time in Parliament. I wish her well in her on-going endeavours.

It is worth noting that it will not be the first time that the Parliament has come together, nor will it be the last, to provide a statutory underpinning to guide—[

Inaudible

.]—provide a direction on how guidelines should be drafted and developed. I am happy to support Mary Fee’s amendment 45, and I support the Government’s amendments, which are essential but important tidying-up amendments.

I move amendment 43.

The Presiding Officer:

Miss Adamson, we were struggling to hear you. Your sound was at the edge of being audible, so, if you wish to add anything in winding up, you might wish to adjust your volume.

I invite the minister to speak to amendment 30 and the other amendments in the group.

Photo of Maree Todd Maree Todd Scottish National Party

Section 15 was amended at stage 2 to provide that, under the reporting duty in section 15, listed authorities are required to report not only on what actions they have taken to meet the minimum standards in the UNCRC requirements, but on what steps they have taken more widely towards progressive realisation of children’s rights.

Section 15 requires listed authorities to prepare and publish reports every three years on what they have done to comply with the duty in section 6(1) of the bill, and on the actions that they have taken to better or further effect the rights of children. Listed authorities will also be required to set out and report on their plans for the next three-year period.

I welcome and support amendments 43 and 44, which will clarify the reporting cycle for the reports and ensure that the published reports will be shared with Scottish ministers. That is a small but important addition that will help to create synergy and accountability across all relevant authorities.

As I set out at stage 2, the Scottish ministers will be required to report annually on the operation of the children’s rights scheme. The reports will set out a number of things, including the steps that ministers are taking and the plans that they have in order to comply with the duty in section 6(1).

The reports will also set out ministers’ plans for giving better and further effect to the rights of children. The requirement to prepare and publish the reports annually will relate to all the Scottish ministers’ functions, including those relating to executive agencies, such as the Scottish Prison Service.

As such, section 16(1)(ka), which includes the functions of the Scottish Prison Service in the listed authorities that will be required to report under section 16, is unnecessary. It is also at odds with the requirement on ministers to report annually under section 13. Under section 16, listed authorities are required to report only every 3 years. However, we understand fully the motivation behind that inclusion, which is to ensure that, in the future, the impact of imprisonment on children and on a child’s rights is addressed. Such children are one of the most vulnerable groups of children in our society and, although the Prison Service and organisations such as Families Outside have made significant progress in that regard in recent years, there is more to do to ensure that the rights of children who are affected by imprisonment can be fully and most effectively realised.

Therefore, we will set out in the explanatory notes that the effect of the bill is that the functions of executive agencies, including the Scottish Prison Service, will be covered by the children’s rights scheme and the annual reports on the scheme. I have written to Families Outside, which supported the inclusion of that provision at stage 2, and I am pleased that it has confirmed that it is content with its removal and our suggested alternative approach.

I also welcome and support amendment 45. As I said earlier in support of amendment 38, it has always been the Scottish Government’s intention that a range of guidance and materials would be developed in partnership to support effective implementation of children’s rights and the reporting duties under section 15. Amendment 45 rightly sets out how that guidance should be prepared, who should be consulted in that process and the duties on Scottish ministers in relation to guidance. These are important matters that provide clarity in the process that is to be adopted.

I urge members to support amendments 43, 44 and 45.

Photo of Mary Fee Mary Fee Labour

I thank Clare Adamson for her very kind words, and I confirm my support for all the amendments in the group.

Amendment 45 is in line with my amendment 38, which was debated in group 5, on guidance. It will ensure that there is a similar requirement on the Scottish ministers to provide guidance to support listed authorities in fulfilling their reporting requirements under section 15.

There is no doubt that making the commitments in the bill real—incorporating children’s rights into service design and delivery—will be challenging. After all, we have never done it before. Therefore, people will need advice and support to help them to get it right and to understand what is expected of them under the legislation, so I welcome the Scottish Government’s willingness to issue guidance to listed authorities.

It is also essential that we ensure that there is transparency in the guidance that is issued in support of implementation of the bill’s provisions. By making that a requirement and by ensuring that such guidance is widely consulted on, we will ensure that there is buy-in to and support for the steps that are to be taken by listed authorities in fulfilment of children’s rights.

I hope that members will support amendment 45.

Photo of Jamie Greene Jamie Greene Conservative

I listened with great interest to the minister’s response on amendment 30. We will support all the amendments in the group.

We tried to include two provisions at stage 2—one was on exercise of the Scottish ministers’ powers relating to prisons and prisoners, and the other related to the Scottish Courts and Tribunals Service. I see that there is no attempt to remove the latter as a listed authority. However, the only listed authority that has a duty to report and in which reference is made to the Scottish ministers is that one, and it is the only one that the Scottish ministers are seeking to remove. That is notable.

I, too, pay tribute to every charity that has campaigned on the issue and raised it with us. However, I question whether it is necessary to remove that specific reference. The argument that it is necessary based on the terms of reporting—three years versus, I think, six months—is a bit of a red herring, because there is nothing to stop ministers reporting regularly. I do not think that how the bill is drafted after stage 2 would elongate the reporting requirements on ministers.

I take on board the feedback from the organisations that have been mentioned and the point that they are comfortable with the Government’s approach. This debate raises an important point, as the minister recognised, which is that application of the UNCRC will be relevant to children who get caught up in the system of dealing with offending.

I want to make the point that we added the provision for good reason at the time, and that it was supported by various external organisations. I thank the minister for her update.

The Presiding Officer:

I call Clare Adamson to wind up on the group.

Photo of Clare Adamson Clare Adamson Scottish National Party

I am content to leave it there, Presiding Officer.

Amendment 43 agreed to.

Amendment 44 moved—[Clare Adamson]—and agreed to.

Section 16—Listed authorities:

Amendment 30 moved—[Maree Todd]—and agreed to.

After section 16:

Amendment 45 moved—[Mary Fee]—and agreed to.

The Presiding Officer:

Group 9 is on reporting by the Scottish Parliament. Amendment 46, in the name of Mary Fee, is the only amendment in the group.

Photo of Mary Fee Mary Fee Labour

Amendment 46 would require the Scottish Parliamentary Corporate Body to publish a report outlining how the work of the Parliament has met the requirements of the bill.

Having worked closely with stakeholders, including Together Scotland, on the issue, I can say that it is of great importance to those groups. The Scottish Parliament is a human rights guarantor and should play a leading role in ensuring that human rights promises that are made to children through the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill are kept by all levels of government. Children do not have the same political or economic power as adults. It is essential that, in its role as a human rights guarantor, the Scottish Parliament pays particular attention to children’s rights and ensures that children and young people are fully involved in decision making on all matters that affect them.

Children are impacted by a host of issues that range from transport policy to the environment and education. Children and young people have been at the heart of the passage of the bill through the Scottish Parliament. The Equalities and Human Rights Committee has learned a great deal from children and young people through their involvement and is keen that that learning is shared across the Parliament. It is essential that children and young people’s involvement in parliamentary business and the democratic process is not limited to a narrow range of topics. The Scottish Parliament must ensure that children and young people’s rights are mainstreamed into its day-to-day work and across all policy areas. Members of the Scottish Parliament should make it a priority to engage children in that endeavour.

The bill already places a range of duties on the Scottish Government and on the courts. It is only right that the Scottish Parliament should itself agree to accept duties. In requiring the Scottish Parliament to set out what it has done

“to secure better or further effect of the rights of children”, and what more it plans to do, amendment 46 would help to secure the culture change in the Scottish Parliament that we are seeking to achieve across Scotland.

I move amendment 46.

Photo of Andy Wightman Andy Wightman Independent

I have a few comments to make on amendment 46, on behalf of the Scottish Parliamentary Corporate Body. The SPCB recognises the aim of amendment 46 to hold the Parliament to the same standard as other public authorities. However, I have a few comments on how that can best be achieved.

I note that the bill explicitly excludes the Parliament from section 6, which provides that

“It is unlawful for a public authority to act in a way which is incompatible with the UNCRC requirements.”

That, it appears to me, is not because the Parliament should not be concerned about children’s rights; rather its exclusion from section 6 seems to recognise its unique status, structure and functions.

I say in passing that the next group of amendments concerns statements to the Parliament about the compatibility of bills with the UNCRC. I will not speak to that group, but the corporate body has looked at those amendments and is content with them.

Some statutory provisions that apply to other public authorities apply to the corporate body—for example, the duty to produce a British Sign Language plan, the duty to produce a Gaelic language plan and the obligations of the Freedom of Information (Scotland) Act 2002. Those duties and others fit with the role of the SPCB as an employer, as a provider of services to the Parliament and as an owner of land and buildings. In cases in which statutory duties are appropriate to its functions, it is correct that the corporate body should be held to the same standards as other public authorities. However, it is not a public authority that exists to provide services directly to the public. Its role is simply to provide the staff and the facilities to enable the Parliament to function. It has no role in defining how the Parliament or its committees should conduct their scrutiny and legislative functions. Members, not least committee conveners, would rightly be concerned should the SPCB seek to exert any direction or influence on those matters. Therefore, the duty in amendment 46 does not seem to fit particularly well with the SPCB’s role.

Head (2)(a) of the amendment would make the corporate body responsible for reporting on matters that are not directly within its control. It is for the Parliament to decide its position on legislation and for individual committees to determine their own work programmes, their business and how they undertake scrutiny. It would not be consistent with the corporate body’s normal functions for it to be responsible for reporting on those matters.

Head 2(b) of the amendment appears to require the corporate body to develop its own position on how the Parliament and its committees should, in future,

“secure better or further effect of the rights of children”.

It would not be appropriate for the SPCB to seek to set policy or issue guidance in the area. It has never done so, it has no statutory role to do so and its functions and impartiality would be compromised if it did so.

Although the corporate body would be concerned about any statutory duty that does not fit with its role, I want to assure Mary Fee and all members, on behalf of the SPCB, that the corporate body is happy to commit to doing what it can to report on how the Parliament’s activities promote children’s rights. The Parliament has shown, in many ways, its commitment to furthering the rights of children and helping to ensure that their voices and concerns are heard, not least through its public engagement strategy. The SPCB has supported all that work and will continue to do so.

As members know, the SPCB produces an annual report, which includes details of a lot of the engagement work that the Parliament undertakes. For example, significant work has been undertaken in session 5 by the Parliament’s education services and the newly established participation and communities team. That has included much closer working with schools and the Scottish Youth Parliament and hearing from a much more diverse range of younger voices when it comes to committee scrutiny of public policy and legislation. Committees have made considerable efforts to make their reports and material accessible. For example, the Equalities and Human Rights Committee’s work on this bill included the production of a child-friendly report, and in projects such as the development of the Parliament’s new website significant emphasis has been placed on accessibility.

The SPCB is committed to continuing to resource the Parliament’s participation agenda to make it easier for the Parliament to hear more diverse voices, including those of children and young people, to inform its scrutiny work.

On behalf of the SPCB, I am happy to commit to the corporate body looking thoroughly at how the annual report can cover achievements and plans for continuous improvement when it comes to engaging with children and on children’s rights. I hope that that achieves the outcome that some stakeholders rightly want to see, without amendment 46 placing a statutory duty on the SPCB that does not fit with its role and responsibilities.

Photo of Alex Cole-Hamilton Alex Cole-Hamilton Liberal Democrat

I support Mary Fee’s amendment 46, which is important to children and young people and the children and young people’s sector. In many ways, what is proposed represents the only way in which children and young people can hold the Parliament to account when it comes to making rights real.

I understand the concerns that Andy Wightman raised but I do not think that they are insurmountable. This is an opportunity for us, collectively, to throw our caps over the wall and press the SPCB to make rights real, within its fabric. I urge members to support amendment 46.

Photo of John Swinney John Swinney Scottish National Party

I thank Mary Fee for explaining the purpose and effect of amendment 46.

Throughout the bill process, the Government has been clear that human rights can be fully realised in Scotland only if all institutions of the state, including the Parliament, take action to respect, protect and fulfil the rights of every member of Scottish society.

That applies equally to children’s rights.

I have said that I support bringing the Parliament within the provisions of the bill in some way. I have also made it clear that that is a matter not for the Scottish Government but for the Parliament itself. That is why I welcome Mary Fee’s initiative in this respect.

Presiding Officer, in your letter of 27 January to the Equalities and Human Rights Committee, you said:

“there are many ways in which the Parliament already seeks to respect and advance the interests and rights of children and young people”.

I agree whole-heartedly with that assessment. One of the Parliament’s best features has been the willingness of parties across the chamber to include and welcome children and young people and to acknowledge, respect and celebrate their contribution to our civic life.

Presiding Officer, in your letter you went on to note:

“the Parliament is, in common with a number of public authorities, subject to more general planning and reporting duties.”

I consider that amendment 46 is in that spirit and would ensure transparency in relation to the steps that the Parliament takes

“to secure better or further effect of the rights of children”.

Amendment 46 recognises the Parliament’s role in relation to the protection of human rights in Scotland, and, by requiring annual reporting on the Parliament, would affirm and embed its rightfully deserved reputation as a rights-respecting institution.

I am grateful to Mary Fee for lodging amendment 46. The Government will support it and I hope that members will do so too.

Photo of Mary Fee Mary Fee Labour

I thank Alex Cole-Hamilton and the cabinet secretary for their positive and helpful comments. I am grateful for Andy Wightman’s comments and explanation on behalf of the corporate body and for the consideration that the corporate body has given to the matter.

Throughout the evidence sessions, the committee heard repeatedly the view from stakeholders that the Parliament should be included in the bill. Through the bill, we ask of others what we are not prepared to do ourselves. Amendment 46 has attracted significant interest and, if am being perfectly honest, I had hoped that the response from Mr Wightman would go further. I fully understand his concerns and have given them a lot of consideration, but his reassurance and explanation fall far short of what I had hoped for and would not fulfil the aims of the amendment. Mr Wightman’s commitment to look thoroughly is not enough and, more important, it will not satisfy the many stakeholders who have campaigned on this specific issue. Ultimately, that is who we have a responsibility to. I will press amendment 46.

Amendment 46 agreed to.

The Presiding Officer:

Group 10 is on compatibility statements. Amendment 47, in the name of Mary Fee, is grouped with amendment 48.

Photo of Mary Fee Mary Fee Labour

Amendments 47 and 48 in my name seek to ensure that all bills introduced in the Parliament—not just Government bills—meet the UNCRC requirements. Effective scrutiny of legislation is essential for protecting, respecting and fulfilling children’s rights in practice. The bill already requires scrutiny of the compatibility of Scottish Government primary and secondary legislation by requiring ministers to undertake a children’s rights and wellbeing impact assessment and make a statement of compatibility.

At present, the bill does not make similar provision for non-Government bills.

The Scottish Government has been clear that it considers it appropriate for the Parliament itself to consider whether those requirements should apply to members’ bills and other non-Government bills. Given the Scottish Parliament’s role as a human rights guarantor, it is clearly appropriate for that duty to apply to all bills introduced to the Scottish Parliament and not just Government bills. My amendments would address that inconsistency and ensure effective scrutiny of all legislation introduced to the Parliament.

I move amendment 47.

Photo of John Swinney John Swinney Scottish National Party

I am grateful to Mary Fee for explaining amendment 47. The bill, on introduction, required the Scottish ministers to make a compatibility statement in relation to Scottish Government bills. Amendments 47 and 48 are complementary to that and would extend the requirement for statements of compatibility to all public bills introduced to the Scottish Parliament. That is supportive of the ambition that children’s rights are fully respected, protected and fulfilled in all legislation passed by this Parliament.

Although the bill will not require that a children’s rights and wellbeing impact assessment is needed for non-Government bills in the same way as for Government bills, I believe that amendment 47 will support and encourage the use of such impact assessments in relation to non-Government bills. Adopting that practice would clearly help members to come to a view about the impact of a bill on children’s rights.

That issue was not proposed to be legislated for by the Government at the outset of the introduction of the bill, for all proper reasons, which Mary Fee has recounted to the Parliament. I am grateful once again to Mary Fee for addressing the issue on the Parliament’s behalf. It is important that that is done by a member who is not a member of the Government.

I support amendments 47 and 48 on the basis that they complement and strengthen the bill, and I hope that members will also support the amendments.

Photo of Mary Fee Mary Fee Labour

I have no further comments. I will press my amendments.

Amendment 47 agreed to.

Amendment 48 moved—[Mary Fee]—and agreed to.

The Presiding Officer:

Group 11 is on legislation that sections 19 and 20 apply to. Amendment 49, in the name of Alexander Stewart, is grouped with amendments 50 and 52 to 54.

Photo of Alexander Stewart Alexander Stewart Conservative

Amendments 49 and 50 are probing amendments. They seek to provide the Scottish Government with the opportunity to explain why it believes that including acts of the UK Parliament in section 19 is within the competence of the Scottish Parliament. The effect of amendment 49 is to delete section 19(2)(a)(ii) by excising acts of the UK Parliament from the scope of section 19. Amendment 50 makes a further consequential change to section 19.

Section 19(1) provides that legislation that would be in the competence of the Scottish Parliament to make

“must be read and given effect in a way which is compatible with the UNCRC requirements.”

Legislation is defined in section 19(2)(a)(i) as

“an Act of the Scottish Parliament” and subsequently in section 19(2)(a)(ii) as “an Act of Parliament”.

There is no issue with the application of section 19(1) to acts of the Scottish Parliament. There is a similar provision in section 101(2) of the Scotland Act 1998, which states that any provision of an act of the Scottish Parliament

“is to be read as narrowly as required for it to be within competence”.

However, some may argue that there could be a challenge as to whether it is competent for the Scottish Parliament to apply the rule in section 19(1) to provisions in acts of Parliament. That is because acts of Parliament are interpreted in accordance with the Interpretation Act 1978.

Furthermore, the reference to an act of Parliament in section 19(2)(a)(ii) would apply to future as well as to past acts of Parliament. Questions may be raised in the future about section 19(2)(a)(ii) if considered with section 28(7) of the Scotland Act 1998, which provides that the UK Parliament has the power to make laws for Scotland. The UK Parliament may have a different interpretation.

I move amendment 49.

Photo of John Swinney John Swinney Scottish National Party

Amendments 49, 50 and 52 to 54 would significantly undermine the protection for children’s rights in Scotland that the bill seeks to put in place and are at odds with the Scottish Government’s ambition that the bill should provide for the highest level of protection possible for children’s rights within the powers of the Scottish Parliament. It is of fundamental importance that any incompatibilities in legislation that would be within the power of the Parliament to make can be remedied.

The amendments proposed by Mr Stewart would remove from the protections offered by sections 19 and 20 of the bill all acts of the United Kingdom Parliament that fall within the competence of the Scottish Parliament—for example, that would include all pre-devolution legislation over which competence has been transferred.

To help members to understand the significance and scope of the proposal, it would put out of the scope of the Scottish Parliament acts such as the Children (Scotland) Act 1995, the Scottish parts of the Police Act 1997, the Rehabilitation of Offenders Act 1974, the Education (Scotland) Act 1980, the Education (Scotland) Act 1996, the National Health Service (Scotland) Act 1978, the Social Work (Scotland) Act 1968, the Family Law (Scotland) Act 1985, the Children and Young Persons (Scotland) Act 1937, the Registration of Births, Deaths and Marriages (Scotland) Act 1965, the Criminal Procedure (Scotland) Act 1995 and the Further and Higher Education (Scotland) Act 1992.

The amendments are very wide reaching and would significantly undermine the protection for children’s rights that the bill seeks to put in place.

I was somewhat perplexed when I heard Mr Stewart talking about his amendments as “probing amendments”, given that I received a letter on 4 March from the Secretary of State for Scotland in which he requested

“that the Scottish Government table an amendment that makes it clear that Westminster legislation is removed from the scope of sections 19-21.”

Members will not be surprised to hear that, in my reply of 9 March, I told the Secretary of State for Scotland that we would do no such thing. I am therefore surprised that such an approach has been marshalled as “probing amendments”, when there was nothing probing about the secretary of state’s letter of 4 March—in fact, I would describe it as menacing.

The Secretary of State for Scotland thinks that he can write menacing letters to the Deputy First Minister of Scotland to seek to exempt key pieces of legislation that are integral to this Parliament’s legislative competence. We have had a little display of how he then sends in his functionaries to do his bidding for him later. That demonstrates that a very orchestrated and sustained assault is under way on the Parliament’s powers. I am not surprised that that is being cooked up in the secretary of state’s office in—

Photo of Jamie Greene Jamie Greene Conservative

I make no apology for being a functionary in the chamber. Members of this place have every right to lodge amendments at stage 3. The

Secretary of State for Scotland does not sit in this Parliament and is perfectly within his rights to represent the UK Government in his correspondence with the Scottish Government, which he has done. How the cabinet secretary perceives such letters and their tone, and how he replies, is up to him.

The Law Society of Scotland reflected and shared some of the valid concerns that we have raised about the interplay between provisions of the bill and UK legislation. Such concerns have been raised throughout the process—I talked about them constructively at stage 1. I said that we would approach the bill constructively, which we have done.

The cabinet secretary’s tone is unfortunate, in light of the bill’s content. We have said throughout that we would support the bill, and we will do so today—we will talk about that in the debate on passing the bill. The cabinet secretary is giving the message that we are somehow not trying to ensure that the bill is watertight, which is unfortunate and a little demeaning.

Photo of John Swinney John Swinney Scottish National Party

I fear that I have touched a raw nerve. For the record, I very much appreciate the fact that the Conservatives have made clear their support for the bill. For completeness and to do full justice to his argument, I note that, in his letter, the Secretary of State for Scotland said:

“Protecting vulnerable children is an absolute priority for the UK Government. Across the UK the different legal protections in place for children are recognised as being amongst the strongest in the world and measures are integrated in our respective legislation.”

Those are other comments from the secretary of state’s letter.

If I did what the secretary of state requested in his letter and if we supported Mr Stewart’s amendments—probing or otherwise—we would limit the protections that are available for children and young people. That would contradict the direction of the bill, which Mr Greene and the Conservatives support.

What we have touched on and what the amendments have given me the happy opportunity to point out to Parliament and to the public is that an orchestrated attempt is under way in the UK Government to hem in the Scottish Parliament’s powers and responsibilities and the exercise of them on the Parliament’s behalf, as legislated for by the UK Parliament in the 1998 act.

I am one of just three remaining MSPs to have voted for that legislation in the House of Commons. I see that David Stewart is in the chamber; the Parliament will be a sadder place without him in the next session. My colleague Roseanna Cunningham is the other member who was a member of Parliament who voted for the 1998 act in the House of Commons. We voted for that legislation—as did the House of Commons and the House of Lords—to create a Parliament that was able to exercise in full its responsibilities in the areas of devolved competence. We are now seeing a pretty orchestrated attempt by the UK Government to interrupt that, whether through the United Kingdom Internal Market Act 2020 that my colleague Mr Russell has been involved in gentle debate on, or the actions set out to us in the letter from the Secretary of State for Scotland. Whatever the method, we are pretty clear that there is an organised threat to the powers of the Scottish Parliament—and the Scottish Government will have none of it.

I make it clear, in case there is any uncertainty in anyone’s mind, that I and the Government oppose amendments 49, 50, 52, 53 and 54. I hope that members from across the political parties will join us in sending a strong signal that they oppose them, too, and that members are determined to protect the powers of the Scottish Parliament.

Photo of Alexander Stewart Alexander Stewart Conservative

As my colleague Jamie Greene indicated, the amendments were suggested by the Law Society of Scotland. Mr Swinney can make strong remarks about what is taking place in the UK Parliament, but the Law Society of Scotland felt that the amendments should at least be discussed and given an airing during the passage of the bill. It was appropriate for me to lodge the amendments and to listen to what has been said today.

I assure the cabinet secretary that there is no malice in the process and I am not acting at the behest of anyone from Westminster. If I have taken advice, it has been from the Law Society of Scotland, which suggested that the amendments should be made. I was more than happy to lodge them. I note the comments that the cabinet secretary has made and I take them on board. Nevertheless, it was important that the issues were aired.

I will not press amendment 49.

Amendment 49, by agreement, withdrawn.

Amendment 50 not moved.

The Presiding Officer:

Group 12 is on the role of the Lord Advocate and the Advocate General for Scotland. Amendment 51, in the name of Alexander Stewart, is grouped with amendments 55 to 59.

Photo of Alexander Stewart Alexander Stewart Conservative

Under the circumstances, I will not move any of the amendments in the group, because my intentions may be misinterpreted as meaning that I am trying to do something that I am not trying to do. The amendments in this group were also suggested to me by the Law Society of Scotland. I will not give an opportunity for such misinterpretation.

Amendments 51 to 54 not moved.

Section 22—Power to intervene in proceedings where strike down declarator or incompatibility declarator is being considered:

Amendments 55 and 56 not moved.

Section 29—Direct references to Supreme Court: compatibility question arising in proceedings:

Amendments 57 and 58 not moved.

Section 30—Direct references to Supreme Court: compatibility question not arising in proceedings:

Amendment 59 not moved.

The Presiding Officer:

Group 13 is on rules of court. Amendment 31, in the name of John Swinney, is grouped with amendments 32 and 33.

Photo of Maree Todd Maree Todd Scottish National Party

Amendments 31 to 33 make minor technical changes to the provision that the bill makes on rules of court. Amendment 33 adjusts section 37 to further clarify that existing powers to make rules of court may be used to make provision for the purpose of the bill. Amendment 31 removes the definition from the bill’s general definitions section, where it is not needed because rules of court are only referred to in section 37. Amendment 32 is a consequential amendment as a result of that change.

I move amendment 31.

Amendment 31 agreed to.

Section 37—Rules of court:

Amendments 32 and 33 moved—[Maree Todd]—and agreed to.

The Presiding Officer:

We turn to group 14. Amendment 34, in the name of the cabinet secretary, is grouped with amendment 35.

Photo of Maree Todd Maree Todd Scottish National Party

The Scottish Government has been clear about its desire for the bill’s provisions to be commenced as soon as is practically possible. At stage 2, the Equalities and Human Rights Committee supported provision for commencement six months after royal assent in preference to our amendment, which would have seen commencement within 12 months. We have considered the matter carefully and concluded that we can support commencement within six months of royal assent.

As I made clear at stage 2, the Scottish Government intends that the first children’s rights scheme will be available to support commencement. Accordingly, amendments 34 and 35 seek to build flexibility back into the bill to enable the Scottish ministers to commence some provisions by regulation before the rest are commenced. That will not affect the overall timetable because, under section 40(2), the other provisions will come into force six months after royal assent, but it will mean that there is flexibility in the timetable, particularly to ensure that the practical work that will be needed to commence key provisions is undertaken swiftly. Amendments 34 and 35 will enable orderly and effective commencement of the bill’s provisions and I encourage members to support them.

I move amendment 34.

Photo of Alex Cole-Hamilton Alex Cole-Hamilton Liberal Democrat

I support amendments 34 and 35. I moved the amendment at stage 2 that provided for commencement after six months rather than 12, and I congratulate the Government on lodging amendments 34 and 35 and on its ambition. Children and young people in Scotland want the rights and protections that incorporation of the United Nations Convention on the Rights of the Child will afford them yesterday. They have wanted those things for many, many years. We started talking about the subject while I was still a child, so I am really delighted by where we are today.

Concerns were raised initially about the ability of public bodies to be ready for the obligations that the bill and the incorporation of the convention will place on them. However, this has been in the offing since the early days of 2012, when we were in the foothills of the Children and Young People (Scotland) Bill. Public bodies have been preparing for it and they have been pulling together, collectively, towards this shared aim. For that reason, I do not think that we have anything to fear from pushing for earlier commencement, and I am glad that the amendments in the group will allow commencement in less than six months if that is possible.

The Presiding Officer:

No other member has indicated that they wish to speak on the group. Does the minister wish to add anything by way of conclusion?

Photo of Maree Todd Maree Todd Scottish National Party

No, thank you, Presiding Officer.

Amendment 34 agreed to.

Amendment 35 moved—[Maree Todd]—and agreed to.

The Presiding Officer:

That ends our consideration of amendments. At this stage, as members will be aware, I am required under standing orders to decide whether, in my view, any provision of the bill relates to a protected subject matter—that is, whether it modifies the electoral system or franchise for Scottish parliamentary elections. The United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill does no such thing, so it does not require a supermajority to be passed at stage 3.

There will be a short pause before we move on to the stage 3 debate on the bill. I remind all members to follow the social distancing rules. Quite a few chats are breaking out with people coming together quite closely, not wearing masks and so on. I encourage members to wear their masks, to follow the one-way systems, to not cross in front of other members’ desks and generally to follow the rules. Thank you.

Colleagues, I have rethought matters and I will suspend Parliament until 10 past 6. I apologise for not recognising the needs of others in the chamber.

18:04 Meeting suspended.

18:12 On resuming—