UNCRC (Incorporation) (Scotland) Bill: Cabinet Secretary's statement

Presiding Officer, I would like to start by thanking Parliament for making time for this statement in a very busy week. It is important that I give an update on the UNCRC (Incorporation) (Scotland) Bill before we break for summer recess.

As the First Minister set out in the policy prospectus, we remain absolutely committed to Scotland being the first UK nation to incorporate the UNCRC in domestic law, ensuring we are a country that respects, protects and fulfils children’s rights.

Members were last updated on progress with the Bill in February and March and at that timewe made clear that we intend to amend the Bill to address the judgment of the Supreme Court. They will also know that there has been engagement about the amendments with UK Government lawyers in the Office of the Advocate General.   

That engagement has been focused on how the duty to act compatibly with the UNCRC can apply when a public authority is acting under powers conferred by UK Acts in devolved areas.

In drafting amendments to the compatibility duty, we have tried to balance three important considerations: protecting children’s rights to the maximum effect possible; minimising the risk of another Supreme Court referral; and making the law as accessible as possible for users.

I will explain what this means for the powers in the Bill that will be returned to Parliament.

With regard to the coverage for children’s rights, it is clear from the Supreme Court judgment that the Bill cannot require public authorities to act compatibly with the UNCRC when they are delivering duties under powers in a UK Act in devolved areas and that Act requires them to act incompatibly. Our objective has however been to ensure that the compatibility duty should apply both when public authorities are delivering duties under a UK Act in a devolved area and the Act requires them to act compatibly with the UNCRC, and also when they are delivering duties under a UK Act in a devolved area that gives them some discretion to act compatibly.

Our assessment has been that amendments to the Bill could achieve this, and could comply with the Supreme Court judgment. We considered that one way we could cover as much devolved legislation as possible would be to differentiate between existing and future UK Acts in devolved areas, so that the compatibility duty applies to existing legislation in these categories, but not to future legislation. We also believe that we could bring into scope provisions in future UK Acts in devolved areas by adding to the Bill a regulation making power which could, with the approval of the Scottish Parliament, extend the compatibility duty to devolved functions created under UK Acts in the future, even if just on a case by case basis.

Presiding Officer, there has been engagement, since September last year, with UK lawyers in the Office of the Advocate General on our proposals for amending the Bill. While that has helped us to develop those proposals, the UK Government lawyers have continued to raise questions and it has become clear to me that they cannot give us reassurance - no matter what is put to them - that would guarantee there will not be another referral to the Supreme Court.

Alongside this engagement, we have also been considering the need for clarity in the duties imposed by the Bill.  Our assessment is that clarity reduces and complexity increases as we seek to achieve greater coverage. This is a result of the legislative landscape within which we operate as a devolved administration, and the implications of the Supreme Court judgment.

Our analysis of the useability of the approach I’ve outlined has revealed that, although it would give the greatest coverage, it would be extremely complex for users. This could arise, for example, because of the need to establish the legal source of a public authority’s function, and, if that source is a UK Act in a devolved area, whether this is a function from an Act that was passed before the commencement of the UNCRC Bill, and whether or not it has been modified by a UK enactment which was commenced post-UNCRC commencement. If the original Act or modification was passed after the commencement of the UNCRC Bill, the user would have to establish whether the legislation had been brought into the scope of the compatibility duty by the use of the regulation making power. Complexities would become even more challenging where a UK Act had been amended by an Act of the Scottish Parliament.

Presiding Officer, our assessment is that as we seek more coverage in the compatibility duty, the provisions become more complex, uncertain and challenging for children and young people and their representatives and for public authorities to work with.

We have discussed the options available with the Children’s Commissioner Office, Together, The Scottish Human Rights Commission, Unicef UK and members of the Scottish Youth Parliament, and have reached the conclusion that the most effective route forward is to progress the option that minimises the risk of a further referral to the Supreme Court, and which also minimises the complexity users will need to navigate. This is for the compatibility duty to apply only when public authorities are delivering duties under powers in an Act of the Scottish Parliament.

This will of course entail a loss of coverage of the compatibility duty in respect of certain laws that relate to children’s rights. There are many existing Acts of the UK Parliament that set out duties that impact on children and young people in devolved areas but I have time to give but two examples here.

The compatibility duty would not apply to services being delivered under the Education (Scotland) Act 1980. This covers the provision of education, including standards, special needs provision and free school books and equipment.

Another example of where the compatibility duty will not apply is when services are being delivered under the Children (Scotland) Act 1995. This will include for example local authorities’ duties in relation to looked after children and personal relations with their parents and brothers and sisters. 

I am aware that some stakeholders have asked that the Scottish Government considers mitigating for this loss of coverage by commissioning an audit across UK Acts in devolved areas and Acts of the Scottish Parliament. The aim would be to maintain compatibility in devolved areas and also to identify UK Acts in devolved areas that impact on children's rights to the extent that it would be worth bringing them into the scope of the compatibility duty by being converted into new Acts of the Scottish Parliament. I want to reassure them that I will give this proposal due and proper consideration.  Any audit would take to time to complete and any legislative change would need to be paced in a way that manages pressure on Parliament’s legislative programme. 

Presiding Officer, despite the limitations these proposals set out today will result in a Bill that does provide valuable protections for children rights and that does so in a way that is legally sound and is clear for users. This is what we consider will give us the greatest effective coverage for children’s rights, given the legislative landscape within which we operate as a devolved administration, and the implications of the Supreme Court judgement.

It will also allow us to begin our journey to legislate for children's rights and wider human rights and provide a solid legal foundation on which to build in the future.

We believe that the Bill, and the supports we are already putting in place for its implementation, are creating a wider cultural change that we can continue to foster.  Be in no doubt, that journey would become easier if there was political commitment in Whitehall to legislate for children’s rights.

The simplest way to secure protection for children’s rights, in Scotland and across the UK, and to do so as fully as possible, is for the UK Government to incorporate the UNCRC into UK law.

The Concluding Observations from the UK State Party’s recent examination by the UN Committee on the Rights of the Child, published this month, include a recommendation that the UNCRC be incorporated into national legislation across the whole of the UK. 

While Scotland was commended by the Committee for its efforts to incorporate the UNCRC into our domestic law, we have learned over the past few years that, without a similar legislative incorporation at the UK level, it is impossible to achieve this to deliver the breadth of protection that our children and young people deserve.

Presiding Officer, I will therefore be writing to the Secretary of State for Scotland, to confirm how we will amend the UNCRC Bill and to urge the UK Government to bring forward its own legislation to incorporate the UNCRC.

The former Deputy First Minister was open about his attempts to engage with the Secretary of State for Scotland to address the issues with the devolution settlement. It is regrettable he was unwilling to do that.

Presiding Officer, once again we find the democratic will of this Parliament being blocked by Westminster. With devolution under attack we simply cannot afford to leave rights – such as those in UNCRC – at the behest of a Tory government.

Surely the fact that we are seeing the UNCRC threatened by the repugnant Illegal Migration Bill is proof enough that this Bill is essential for protecting children in Scotland.

Of course as the First Minister set out last week, with independence our nation would have the opportunity to right this wrong, by incorporating UNCRC into our written constitution.

In the meantime, I will also now make arrangements to begin the process of Parliamentary Consideration of a revised UNCRC (Incorporation) (Scotland) Bill. The process agreed with the Parliamentary authorities for this Bill means that the next step is to confirm the admissibility of our proposed amendments with them. I will then lodge a motion so that Parliament can confirm its willingness to reconsider the Bill.

We are confident that our proposals for amending will be within legislative competence, and will deliver a clear, coherent and workable Bill that provides some valuable protections for the rights of children in Scotland and I look forward to presenting the amendments to Parliament as soon as possible after the summer recess.