Meeting of the Parliament 17 February 2026 [Draft]
During the committee’s scrutiny of the bill, we consistently heard that a key safeguard to the exemption in section 6B would be a statutory duty to notify the Scottish Government, the children’s commissioner and the Scottish Human Rights Commission when the exemption might be relied on.
I supported the Government’s stage 2 amendment that introduced a notification duty that will apply when the exemption is raised in legal proceedings. However, I remained concerned that that will provide transparency only at a very late stage, when proceedings are already under way. That is why I lodged an amendment at stage 2 to introduce an alternative notification duty. Although that was not agreed to, I welcomed the cabinet secretary’s commitment to work with me ahead of stage 3 to develop a proportionate and workable alternative. Amendment 13 reflects that joint work. I am grateful to the cabinet secretary for the time that she has put into the amendment.
Amendment 13 would introduce a duty on the public authorities listed in section 19 of the UNCRC act to notify the Scottish Government, the Children and Young People’s Commissioner Scotland and the Scottish Commission for Human Rights if and when they are of the view that they cannot read and give effect to relevant legislation in a way that is compatible with UNCRC requirements and therefore take the view that the exemption might apply. That duty would mean that, where a listed authority identifies an issue with the legislation while fulfilling its obligations under the act, it must notify those bodies. That would create a mechanism to identify and scrutinise potential issues at an earlier stage.
If we do not agree to amendment 13, then, because many instances will not reach court and be subject to legal proceedings, we will simply be living in ignorance about how often the rights of children and young people, which we have incorporated into law, are not being fully upheld.
I understand that that revised approach has been supported in engagement with children’s rights stakeholders and listed public authorities. It also directly addresses one of the key calls made during the committee’s evidence taking.
Amendment 13A might be a little cheeky, because it would amend amendment 13 to widen the scope of that notification duty. It would ensure that public authorities are obliged to notify the Government, the commissioner and the commission not only when they are proposing to act but when they are contemplating such an act—for example, when engaged in service planning or in other high-level discussions in which such issues might be expected to arise. Amendment 13A would simply ensure that public authorities provide the Scottish Government with notification of potential incompatibilities at the appropriate point, thereby triggering the Government’s duty to assess and to report to Parliament any action that it has taken in response.
Amendment 14 is necessary in order to make part 2 of the bill operate effectively to deliver the policy intention underlying it. It is supported by the Children and Young People’s Commissioner Scotland, SHRC, Together Scotland, UNICEF, Clan Childlaw and Social Work Scotland. It would provide the children’s commissioner and the Scottish Human Rights Commission with a means of responding to a notification from a public authority about potentially incompatible legislation in a way that reflects their respective statutory roles. It is therefore a consequence of the Scottish Government’s stage 2 amendment—now section 34A—and of my amendments 13 and 13A.
Amendment 14 would allow the commission and the children’s commissioner directly to refer legislation to the court for a decision on compatibility, thereby promoting legal clarity and certainty to the benefit of children and public authorities, and would support the Scottish Government’s goal of clarifying the law and clearing up the statute book.
I have made a positive case, but I also encourage members to consider the consequences of not agreeing to amendment 14. The children’s commissioner and the SHRC have been advised that assessment by the Government is likely to be extremely time consuming, that the Government cannot position itself as a source of legal advice to public authorities and that it will report to Parliament only when it receives a notification from a listed authority and proposes to take action. Children cannot be left to bear the responsibility of clearing up the statute book, particularly when part 2 of the bill would actively disincentivise them from raising actions from which they cannot benefit. Instead, we should enable the commissioner and SHRC to fulfil their statutory duties. When organisations want to challenge legislation, in the absence of amendment 14 being given effect the only route available to them would be to identify an unlawful act by a public authority, bring proceedings, let the defence be raised and then seek a determination from the court. That would be adversarial, time consuming and costly for all parties, but amendment 14 would offer an alternative to that process.
Amendment 15 would require a regular audit of legislation that is likely to require the UNCRC to be set aside, and it would require the Scottish Government to state what it intends to do on finding any such legislation. The amendment would promote greater transparency and accountability by introducing a focused and systematic mechanism for identifying and addressing legislation that requires public authorities to act incompatibly with the UNCRC requirements. I note that the Scottish Human Rights Commission suggested that at stage 1 and that the amendment also has the support of the Together alliance.
I urge members to support my amendments in this group.