Hansard

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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