Incorporating the United Nations Convention on the Rights of the Child into Domestic Law in Scotland Working Group: summary report

Annex N - Incorporating the United Nations Convention on the Rights of the Child into Domestic Law in Scotland Working Group, 6^th Meeting

Minutes of Meeting Held at COSLA Offices, Edinburgh, at 10 am on Wednesday, 25 September 2019

Present: Mairi Macpherson, Deputy Director, Creating Positive Futures, Scottish Government (SG)(Chair)
Superintendent Ann Bell, Police Scotland
Dr. Katie Boyle, University of Stirling
Nicola Dickie, COSLA
Jack Dudgeon, Scottish Youth Parliament
Juliet Harris, Together (Scottish Alliance for Children’s Rights)
Dr. Kenneth Meechan, SOLAR
Dragan Nastic, UNICEF
Prof. Aoife Nolan, University of Nottingham
Laura Pasternak, Scottish Youth Parliament
Lucinda Rivers, UNICEF
Douglas Ross QC, Ampersand Advocates
Clare Simpson, Parenting Across Scotland

In Attendance: Liz Blair, SG Legal Directorate^[75]
Nicola Guild, SG Legal Directorate^[75]
Lawrence Mearns, Children’s Rights (Secretariat)
Agnes Rennick, Children’s Rights

Apologies: Lynda Brabender QC, Westwater Advocates
Michael Clancy OBE, The Law Society of Scotland,
Michael Chalmers, Director, Children and Families
Chief Superintendent David Duncan, Police Scotland (represented by Superintendent Ann Bell)
Hannah Ross, COSLA
Norma Shippin, NHS
Suki Wan, Scottish Youth Parliament (represented by Jack Dudgeon)

Welcome

1. The Chair thanked Members for attending the meeting of the Working Group (Group). The Chair also thanked COSLA for hosting the meeting at its central offices.

2. The Chair asked Members to note that, whilst the Terms of Reference billed this meeting as considering an analysis of the consultation responses, officials were unable to share the full analysis at the meeting, however, a presentation of the information that was available would be given.

Minutes of Previous Meeting and Action Points

3. Members agreed the minutes of the previous meeting, subject to an amendment suggested by a Member. The Chair then provided an update on the following actions:

Action 1: The SG agreed to amend the summary of the workshop discussions from the 27 August meeting on Compatibility and Redress, to reflect suggested amendments, and to circulate a revised draft for Members’ consideration and clearance.

Update: The Chair confirmed that the revised summary of the workshop discussion on Compatibility and Redress, was circulated with the papers for this meeting.

Action 2: The SG agreed to provide a more detailed update on the responses received to the consultation at the next meeting.

Update: The Chair noted that officials had prepared a further update which would be presented and discussed at item 3 on the Agenda for the meeting.

Publication of Papers from Meetings on the SG Website

4. The Chair confirmed that papers from the first meeting of the Group and its Terms of Reference were now published on the SG website.^[76] Minutes and summaries of workshop discussions from the subsequent meetings would be uploaded onto the website once they had been approved by the Group.

5. Some Members noted that the external link to the Group‘s papers on the SG website appeared not to be working.

Actions:

• Members agreed to forward any further amendments to both the minutes and the summaries of workshop discussions to officials by 9 October 2019.
• The SG agreed to fix the website link.

Consultation Analysis – Update

6. The SG provided an overview of the initial findings of the independent contractor commissioned to analyse the responses received to the consultation on incorporating the UNCRC into domestic law, which closed on 28 August. The SG noted that over 160 responses had been received and that, in line with SG guidance, the non-confidential responses would be published on the SG website by 26 September 2019.^[77] The following points were raised in discussion:

• A Member noted that the majority of responses to question 12 of the consultation were in favour of full and direct incorporation of the Convention into domestic law. Members engaged in a discussion around the breakdown of the responses to this question.
• A Member questioned the methodology used by the independent contractor. The SG confirmed that information on the contractor’s approach to the analysis would be included at the start of their report.
• Some Members asked for clarity on how the independent contractor would capture the comments made by either respondents who had not responded quantitatively or those who had included comments which were not directly relevant to the question. The SG confirmed that information on the contractor’s methodology would be included within their report.

Action: SG agreed to share the final consultation analysis with Members as soon as they were able.

Feedback on follow-up discussion with Members on reserved / devolved matters.

7. The Chair referred Members to the previously circulated discussion paper developed by Dr. Kenneth Meechan which discussed the challenges of incorporating the UNCRC into domestic law in terms of legislative competence and suggested an option to address these issues. Members were reminded that this paper was discussed at an additional meeting (by teleconference) which took place on 9 September. This was an optional meeting in which five Members had been able to participate.

8. Some of the Members who attended the optional meeting suggested that the draft minute did not fully reflect the complex and technical issues raised and some of the nuances of the discussion.

Action: It was agreed that Members who attended the meeting should submit their comments to officials so that the minute could be amended to reflect more of the discussion which had taken place.

9. Members welcomed Dr Meechan’s paper as a means of initiating discussion on the complexities of the issues. The following points were raised by Members:

• A Member suggested that it could be helpful for the Group to understand the SG’s position.
• A Member noted that the model for incorporation developed by an advisory group convened by the Children’s Commissioner and Together (Scottish Alliance for Children’s Rights) proposed direct incorporation of the UNCRC in full but included a caveat to restrict application to devolved areas.
• A Member noted that consideration should be given to the lessons learned from other nations who have incorporated the UNCRC

10. The Chair noted that legislative competence is a matter for Ministers to consider as the detail of the Bill is further developed. The SG’s position is laid out in the consultation. The SG is considering all received contributions, including those from consultation respondents, attendees at engagement events and those made by Members of the Group.

Discussion on next steps

11. The Chair invited Members to provide their views on the Group’s final output. The following points were raised by Members in discussion:

• A Member noted that if the output of the Group takes the form of a summary report, this should contain a recommendation that the SG listen to opinions from the legal community.
• A Member suggested that a summary report should identify not only those issues on which consensus had been reached but also those on which the Group had failed to reach consensus, so that these could be highlighted as requiring careful consideration by the SG.
• A Member suggested that consensus had been reached on the following:
  • The Bill should incorporate as much of the UNCRC as was within the legislative competence of the Scottish Parliament;
  • The need for a child centric complaints mechanism for those who feel that their rights have not been upheld;
  • The Children’s Commissioner should be able to bring forward cases on behalf of children and young people; and
  • The continued use of the Child Rights and Wellbeing Impact Assessment.
• Some Members suggested that a summary report should focus its recommendations on the Group’s desired outcomes of UNCRC incorporation and how a culture change around children’s rights could be created.
• Some Members noted that a summary report should make recommendations on how duty bearers can start to prepare for commencement.

12. Some Members expressed concern that the Bill was not scheduled to be introduced to Parliament before Year 5 and commented that, on average, Bills take around 14 months to progress through Parliament. A Member suggested that information should be provided to reassure stakeholders on the proposed timeline for the Bill. Some Members also discussed whether the Group’s final output could include a ‘no later than’ deadline for legislation to be introduced to Parliament and suggested that further thought and discussion was required on this point. The Chair noted that the Bill would be introduced in Year 5 in line with the commitment in the Programme for Government 2019/20. The legislative programme for Year 5 will be published in September 2020. The Chair restated the First Minister’s commitment to incorporate the UNCRC within the current parliamentary session.

13. Some Members requested that an additional meeting to that scheduled for 21 October was required to allow the Group to discuss the full analysis of the consultation responses as well as reach agreement on a summary report.

Action: The SG agreed to investigate if another meeting could be held in mid-November.

September 2019