Hansard

I am pleased to speak on behalf of the Equalities and Human Rights Committee in the debate. It has been 30 years since the UK ratified the UN Convention on the Rights of the Child, which, under international law, sets out the civil, political, economic, social and cultural rights that all children are entitled to. I agree with the Deputy First Minister that progressing this legislation is a moment of joy in what are very difficult times for everyone.

Incorporating the most widely ratified human rights treaty in the world into Scots law is a landmark moment for Scotland. The new bill legally obliges public authorities—including the Scottish ministers—to respect children and young people’s rights, and it places them under a duty not to act incompatibly with the UN convention. The bill will allow children and their representatives to take public bodies to court for breaches of their rights. The bill was the focus of the committee’s work during the latter part of last year.

We welcome the Scottish Government’s maximalist approach, which seeks to go to the very boundary of legislative competence to ensure that children and young people’s rights are respected and protected and can be fulfilled to their fullest extent in Scotland.

In keeping with that maximalist approach, the committee considers it vital that children have their rights protected, respected and fulfilled as a matter of urgency. That is why we have urged the Scottish Government to amend the commencement provision to ensure that the legislation comes into effect six months after the bill receives royal assent. I appreciate the Deputy First Minister’s assurance that serious consideration is being given to that important matter.

To inform its scrutiny of the bill, the committee issued a call for evidence that ran from 7 September to 16 October 2020. We received 153 written submissions about the bill, largely from organisations in the public and third sectors.

Children and young people are at the heart of the bill, which is why the committee also held a dedicated call for their views. The associated facilitators pack—developed with the assistance of Together Scotland, the Children’s Parliament and Children in Scotland—was crucial to the success of that call. It is evidence of the effort and skill of those groups that the committee received more than 50 responses from children and young people, which came from individuals, primary schools, high schools, modern apprentices and children’s organisations. We thank everyone for sharing their knowledge and time. Creativity and innovation did not stop there. Responses included reflective writing, drawings and stop-motion videos. I invite members to look at the ideas that we were sent.

We know that children are not a homogeneous group. With the assistance of many voluntary groups, such as the Scottish Children and Young People’s Centre for Justice and Aberlour guardianship, we listened and spoke to children under 12 years old, young people between the ages of 12 and 18 and young carers, refugees and asylum seekers. We spoke to minority ethnic young people; children and young people with additional support needs; care-experienced children and young people; lesbian, gay, bisexual, transgender and intersex young people; and those with experience of the youth justice system. Through those varied activities, we came to a real understanding of what they hoped that the bill would achieve for them.

At the Children’s Parliament session, young participants said that adults sometimes do the wrong thing because they do not understand children’s rights. One example given was:

“If a child doesn’t know how to tie their shoelaces, then people teach them. If a child doesn’t know how to behave, then people punish them. That makes no sense.”

Young refugees told us about the importance of article 22 of the UNCRC, which says that they have the same rights as children born in that country. They told us that that meant they could dream of a future and could receive an education and access health services like people living in Scotland. They said that they would feel isolated if they did not have those rights.

Our child-friendly version of the stage 1 report, published simultaneously with the requisite report, ensured that children and young people have a report that speaks to them about their interests. It shows how their views were listened to and taken account of in the committee’s considerations and explains what happens next to the bill. If any of the children and young people who helped us are watching, I place on record and say directly to them that we thank them for their valuable insights and their help.

Almost everyone who shared their views with us through submissions, oral evidence or participation, whether they were academics or children, had one thing in common: overwhelming support for the bill. The bill has the potential to put children’s rights at the very centre of public authority decision making.

However, we believe, as the evidence to the committee has shown, that there are areas where the bill can be improved.

For example, we called for the definition of “public authorities” to be widened to ensure that organisations such as private schools, housing providers, residential care settings and childcare providers are not excluded from the legal obligations in the UNCRC. Experience with the Human Rights Act 1998 has shown that courts have defined the term “public authorities” too narrowly, exempting private or voluntary bodies when they are carrying out public functions. The committee believes that that must not be the case under the bill, so we recommended that the Scottish Government consults the main stakeholders to investigate how the definition of a so-called “hybrid public authority” could be tightened to avoid similar issues arising. We welcome the Scottish Government’s commitment to lodge an amendment to strengthen protection in that area.

Under the bill, as well as the children’s commissioner having the ability to take cases, children and representatives acting on their behalf will be able to challenge public authorities in court for infringing their rights. The bill would allow the courts to strike down legislation that is incompatible with any UNCRC requirements.

However, submissions to the committee raised concerns about the accessibility of the existing courts and tribunals service to children. Our report called on Scotland’s top judge to reflect on that evidence and to provide an update on the progress being made towards developing a child-friendly court system in preparation for the new legislation. We look forward to receiving a progress update that will inform the amending stages of the bill.

We made further recommendations aimed at improving access to justice for children and young people; for example, in relation to ensuring that judicial remedies for infringements of children’s rights are effective in practice. Rosemary Agnew, the Scottish Public Services Ombudsman, considered it important that remedies should drive organisational change and, vitally, should consider what children might want as a remedy. We are pleased that the Scottish Government has agreed to amend the bill to require courts and tribunals to ask for the child’s views on what would constitute an “effective remedy”. The committee, however, asks the Scottish Government to reconsider its position on altering the definition of a remedy so that it is “just, effective and appropriate”.

One of the bill’s key operational mechanisms is the requirement on Scottish ministers to make a children’s rights scheme to set out how they will comply with the duties in the UN convention. Many stakeholders argued that the scheme could be strengthened to include measures to support children with protected characteristics and those in vulnerable groups. Juliet Harris from Together Scotland referred us to our consultation events, as they showed that particular children struggle to access their rights, such as children whose first language is not English, those who might face food poverty or those who cannot go to school.

Oonagh Brown from the Scottish Commission for Learning Disability called on the scheme to refer to the UN Convention on the Rights of Persons with Disabilities, so that young people with learning disabilities, alongside those with other protected characteristics, see themselves in the bill. Otherwise, the bill might not be seen as being helpful to them in realising their human rights.

Further inclusions were called for: access to advocacy support, legal aid, human rights education and a child-friendly complaints mechanism. Each one is fundamental to ensuring that children’s rights are made real in practice.

We welcome the Scottish Government’s intention to strengthen the scheme by requiring ministers to include arrangements for child-friendly complaints mechanisms and ensuring effective access to justice for children and young people. It would be helpful if the Deputy First Minister could clarify whether those amendments will address concerns around protected characteristics and vulnerable groups.

I will finish with a quote from a young engagement participant from the Carers Trust Scotland, who said:

“The UNCRC needs to be ‘out there’ and be known. Unless it is known about it’s just ‘there’ We need a public conversation about UNCRC and young people in Scotland.”

That highlights the critical importance that implementation plays in the bill’s success. We must not just have the bill “there” or think that now that the UNCRC is being incorporated, that is all that we need to do. We need to make sure that the bill works to advance the culture change that we all want to see for our children and young people now and for future generations.

The Equalities and Human Rights Committee supports the general principles of the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill.