United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill: Stage 2 Briefing

We warmly welcome and support the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill. Incorporating the UNCRC into domestic Scots law is the most important thing we can do to ensure children’s rights are respected, protected and fulfilled.

This Bill is the result of decades of work by children and young people, civil society organisations and our office to secure a stronger legal framework for children’s rights. The progress of this Bill through the Scottish Parliament has drawn international attention, particularly given the context of the coronavirus pandemic.  The role this Committee plays, as human rights guarantors tasked with ensuring this Bill represents the strongest possible protections for children’s rights is therefore vital.

We thank the Committee for their scrutiny of this Bill at Stage 1, and particularly recognise the engagement with children and young people which has helped deepen the Committee’s understanding of the importance of this legislation to children. We welcome the recommendations made in the Stage 1 report.

We welcome the fact that so many positive amendments have been proposed at Stage 2 which will strengthen this Bill in line with the Committee’s recommendations.   

We recognise the human rights leadership of the Scottish Government in recent years in the development of this Bill, but throughout the process we have repeatedly expressed concern over delays in delivering stronger rights protections for children. We have serious concerns at the Scottish Government’s proposal to delay commencement by up to 12 months and continue to call for an earlier commencement date on the face of this Bill.

As a member of our Young Advisors Group put it:

“If the law is passed but not commenced immediately it will confuse children and young people on what protection and rights they have.” ―CYPCS Young Adviser

Amendments we support

1, 2, 4, 7, 9, 14, 16, 17, 18, 19, 20, 21, 22, 23, 24, 26, 27, 28, 31, 32, 35, 36, 37, 39, 40, 42, 43, 47, 49, 50, 51

Amendments we oppose

12, 13

Scottish Human Rights Commission

We support amendment 19 and related amendments 16, 17, 19, 27, 28, 39, 40, 42 and 43

We support the inclusion of the Scottish Human Rights Commission (SHRC) in this Bill and all relevant amendments. We included powers for SHRC equivalent to those for our office in the draft incorporation Bill we prepared along with Together in 2018.  It is in children’s best interests for SHRC to have these powers, which complement those introduced for our own office.

Section 4 – Interpretation of the UNCRC

We support amendments 2, 7 and 51

As outlined in our evidence at Stage 1, Courts may draw upon a wide range of sources in interpreting the UNCRC and we welcome the Committee’s recommendations regarding this. Amendments 2, 7 and 51 all serve to draw attention to the breadth of interpretative sources available to the Courts. We note that wording of Amendment 51 will require subsequent amendment to refer to the United Nations Convention on the Elimination of All Forms ofDiscrimination against Women. We note that this is a non-exhaustive list and that other sources of interpretation, including other parts of the international human rights framework, including the Council of Europe, will continue to be important.

Section 6 – Duties on Public Authorities

We support amendment 9

In our evidence at Stage 1, we drew attention to the importance of ensuring that children’s rights are protected even where services are contracted out to private or third sector organisations. The importance of this has been highlighted by the UN Committee on the Rights of the Child in General Comment 16.  We welcome the Scottish Government’s amendment to section 6 to seek to achieve this and would welcome further assurance that this would protect children’s rights, however services are delivered.

Sections 7, 8 and 9 – Remedies

We oppose amendments 12 and 13

We welcomed the policy intention of section 7, which was that children should not be subject to time limits in taking action for breach of their rights. We are therefore concerned to see amendments brought forward that would dilute this.

We support amendment 14

We welcome the Committee’s recommendation that this Bill be amended to require courts to issue a remedy which is “just, effective and appropriate”.

We support amendment 18

We welcome Amendment 18, which provides children with the opportunity to participate in decisions made about relief or remedy. This amendment mirrors the language used in Part 1 of the Children (Scotland) Act 2020

Sections 11, 12 and 13  –  Children’s Rights Scheme

We support amendments 20, 21, 22, 23, 24 and 26

The Children’s Rights Scheme will be the key to successful implementation of this Bill across Scottish Government and public authorities and we welcome the Committee’s recommendations on strengthening the scheme.

We agree with the Committee’s recommendation that section 11(3) needs to be strengthened, by amending “may” to “must”. 

We welcome the amendments on complaints handling and effective access to justice and look forward to further clarity on how these will be delivered.

We welcome the amendment setting a date of publication for the first scheme.  This should not be subject to delay.

Child friendly reports

We support amendments 47, 49 and 50. We note that amendment 50 may be preferable to amendment 5 as is consistent with other amendments on this issue

We support the amendments to sections 13, 15 and 23 to make it clear that reports published must be accompanied by a version that “children can understand”. 

Section 14 – CRWIA

We support amendments 31 and 32

We feel that the duty on Scottish Government to conduct CRWIA on decisions of a strategic nature, as presently drafted is ambiguous and allows too much ministerial discretion on when a CRWIA should be prepared. We support the amendments 31 and 32, or should they fall, amendment 33.

Section 15 – Reporting Duties of Listed Authorities

We support amendments 35, 36, 37 and 49

We welcome the strengthening of these duties.

Section 16 – Listed Authorities

We support amendment 4

In our Stage 1 evidence we called for the Scottish Courts and Tribunals Service to be included as a listed authority. 

Section 23 – Ministerial Action

We support amendment 50

Section 40 – Commencement

We support amendment 1

We strongly welcomed the Committee’s recommendation at Stage 1 for a commencement date within six months of Royal Assent, on the face of this Bill. We welcome amendment 1 which will give effect to the Committee’s recommendation.

This six-month period already represents a delay in providing protections for children’s rights in favour of allowing public bodies additional time to prepare. As the Committee noted in its Stage 1 report “Public authorities, however, should already have many of the mechanisms in place through other legislation and therefore the Committee is not convinced of the argument that significant additional preparation time is required”.

We note the Scottish Government’s acceptance of the need for a commencement date on the face of this Bill but have serious concerns at the proposal to delay commencement for up to 12 months.

As the Committee concluded in its Stage 1 report “This year has been hard on children and young people who have been significantly impacted by the pandemic. Children need to have their rights protected, respected and fulfilled as a matter of urgency. It is vital to ensure a generation of children and young people do not suffer the long-term impacts of the crisis. This Bill presents an opportunity to give young people greater protection and put them at the centre”.

Since then, things have continued to deteriorate for children and young people. The urgency for legislative rights protections for children has increased. The impact of the pandemic and the interference with children’s rights put in place in response, represents a human rights crisis. It is essential that the protections in this Bill are in place as soon as possible.

A year is a huge amount of time in a child’s life. The coronavirus pandemic has shown us just how long a year can feel and just how vulnerable rights protections can be. A year is too long to wait.

For further information, please contact Megan Farr, Policy Officer at megan.farr@cypcs.org.uk or 07803 874 774