Amendment 116: A duty on Ministers to establish a group (‘the body’) to consider whether the UNCRC should be given legislative effect and to help continue the discussion on UNCRC incorporation

Children and Young People (Scotland) Bill: Stage 3
The Deputy Presiding Officer: Group 1 is on duties of Scottish ministers in relation to the rights of children. Amendment 116, in the name of Jean Urquhart, is grouped with amendments 117, 118, 93 and 119 to 126.
Jean Urquhart (Highlands and Islands) (Ind):

The stated policy intention behind the bill is to contribute to Scotland being the best place for children to grow up, and I applaud that intention. It is vital to the Scotland that we wish to create, which recognises not only the vital contribution that children and young people make to our society and our communities but that, in order for them to make that contribution, they deserve and require our respect, our protection and our nurturing.
I welcome the provisions in part 1 of the bill but, like many organisations and individuals working with and for children in Scotland, I am disappointed that part 1 does not go further. Accepting all the stage 3 amendments would go some way to progress our commitment to children’s rights, and accepting amendment 116 would form a key part of that commitment.
My amendment seeks to place a duty on Scottish ministers to establish a body within one year of royal assent to examine the case for giving legislative effect to the United Nations Convention on the Rights of the Child. I recognise that the Government has intimated that it believes full incorporation to be unnecessary; I also recognise that the Education and Culture Committee’s stage 1 report raised questions over how that could be done meaningfully.
I hear what the committee has said about incorporating children’s rights, but why do we need evidence to accept that children have rights that should be upheld and promoted in law in the same way that adults do? The same arguments were not made when the case was made for the adoption of the European convention on human rights, or for extending the Human Rights Act 1998 to apply to devolved matters during the passage of the Scotland Act 1998. If we did not require evidence to apply human rights to our domestic law, why do we need evidence for children to have rights in law?
There has been strong support for such a move from the children’s sector and the human rights sector. Incorporation of the UNCRC was supported by UNICEF, the Scottish Human Rights Commission, Scotland’s Commissioner for Children and Young People, the NSPCC, Families Outside and Together. Amendment 116 has the support of Children 1st, Barnardo’s, Together, YouthLink Scotland, Scotland’s Commissioner for Children and Young People and a number of academics across the legal and sociological disciplines. For such a move to be supported by such a wide range of interested organisations surely suggests that the amendment has merit.
The bill should mark not the end of our journey in the process, but the beginning. Today, we can commit to explore how to incorporate children’s rights into our legislative framework; signal our intent to make our society truly a child-centred one; and recognise children as having rights in their own regard, which all of us should be willing and devoted to pursuing.
Amendment 116 would give Scottish ministers considerable scope to determine how best to achieve that. Setting up a body such as an independent commission to examine the options would make a statement that I hope we can all support. The amendment would not require Scottish ministers or the Parliament to commit to anything other than the establishment of an appropriate body and consideration of its report. In doing that, we would send a clear signal about the importance that we attach to children’s rights and provide a clear message about the seriousness of our commitment to make Scotland the best place to grow up. Therefore, I hope that Scottish ministers and all MSPs, from all political parties and none, will support amendment 116.
I move amendment 116.

Liam McArthur (Orkney Islands) (LD): The bill represents the coming together of two pieces of proposed legislation, one of which is a bill on children’s rights. As Jean Urquhart identified, the Government appears largely to have lost sight of that aspect of what we should be trying to achieve.
The Law Society of Scotland and the Faculty of Advocates said that the bill added little to what was in place and in some respects even diluted children’s rights. Our committee concluded at stage 1 that the duty on ministers was “little more than a restatement of existing obligations.”
Although improvements were introduced at stage 2, the children’s commissioner is clear that “So far the opportunity has been missed to be ambitious for children’s rights and to embed children’s rights in Scotland’s governance and public services.”
My amendments are an attempt to address that position, not just with regard to the bill but with regard to future legislation.
Like others, I did not feel that the case had been made for the full incorporation of the UNCRC, but more can and should be done to incorporate key principles, most notably articles 3 and 12. Tam Baillie proposed that idea in his stage 1 evidence, and he was backed by a wide range of children’s charities. Despite that, the minister and her Scottish National Party colleagues refused to support any of my stage 2 amendments.
Parliament should have a further opportunity to consider the issues and to take a view. My amendments 117 and 118 reflect what we have heard about the need to put children’s rights and interests at the centre of the bill, to make sure that their voices and views are heard, and to give proper effect to the principles that should underpin the bill. I am sad to say that the minister’s amendment 93 will not do that. While I have sympathy with Jean Urquhart’s amendment 116, the important thing is to get substantive and meaningful changes into the bill now.
At stage 2, I sought to beef up the reporting requirements on ministers with regard to the steps taken to comply with the duties that are placed upon them. All my amendments in that regard were rejected. I am pleased that Neil Bibby has taken up the cudgels at stage 3 and I will support his efforts.
I will be interested to hear Alison Johnstone’s comments about the amendments in her name. I am instinctively sympathetic, but it is perhaps unfortunate that she did not lodge amendments with such effect at stage 2, to enable more detailed consideration and, if necessary, refinement.
Amendments 125 and 126 represent an attempt to safeguard children’s rights in the context of future legislation. Amendment 126 repeats an amendment that I lodged at stage 2 and would require a children’s rights impact assessment to be carried out on every relevant bill that was introduced to the Scottish Parliament. Ministers would have discretion about how widely the approach would apply. The approach would enable us to reflect the Education and Culture Committee’s recommendation, follow the lead that has been taken in Wales and deliver a cultural shift in the way in which we view children’s rights.
The minister has argued that undertaking CRIAs could be delivered through non-legislative means. However, although the Government committed to trialling CRIAs in its UNCRC action plan in 2009, not a single CRIA has been carried out.
Amendment 125 tries to skin the cat in another way and would place a duty on ministers to make a statement or assessment of compatibility with the UNCRC, as currently happens with regard to the Human Rights Act 1998. I understand that such an approach works well in Australia. I hope that if amendment 126 remains unpalatable to the minister, amendment 125 will be an acceptable alternative.
On children’s rights, the bill remains a missed opportunity. The children’s commissioner has made clear that if my amendments and others in this group are not agreed to, the bill “will fall far short of matching the high ambition to ‘make rights real’, often stated by Ministers.”
I urge the Parliament to vote to put that right.

The Minister for Children and Young People (Aileen Campbell): I welcome the opportunity to respond to the range of amendments that focus on part 1 of the bill. The bill will ensure that children’s rights properly influence the design and delivery of policy and services, by placing new duties on ministers.
Amendment 116 proposes the establishment of a new body to look at legal implementation of the UNCRC. The proposal seems similar to the children’s commissioner’s suggestion at stage 1 that a parliamentary inquiry look at UNCRC incorporation. The suggestion was not pursued by the Education and Culture Committee in its report.
We have robust structures for holding ministers to account for their approach to the UNCRC. We have the Scottish Parliament and its committees, the children’s commissioner and a national implementation group for children’s rights. Another body is not required, and even if it were required, there would be no need to legislate for its creation.
UNCRC incorporation was the subject of a great deal of discussion at stage 1. A range of views was given by key figures with expertise in children’s rights and the law. The Education and Culture Committee carefully considered the arguments and was not convinced of the merits of incorporation. Professor Ken Norrie said: “I think that to incorporate the convention into the domestic legal system of Scotland would be bad policy, bad practice and bad law. I say that primarily because the UN convention was not drafted or worded to create directly enforceable legal rights in the domestic legal system.”—[Official Report, Education and Culture Committee, 3 September 2013; c 2682.]
We will continue to engage with partners about how we can strengthen children’s rights, through the fora that are in place, and build on the strong foundations in the bill, which are a good starting point from which to develop the UNCRC.
On amendment 117, a similar amendment was considered at stage 2. Now, as then, we have concerns about the introduction of the concept that children’s interests should be “a key consideration”. The UNCRC clearly recognises that children’s best interests should be a primary, rather than a key, consideration. That is the standard towards which we should be working. It does not make sense to pursue such a broad-ranging principle through blanket duties on ministers, which would open up the risk of unnecessary litigation. That would serve no one’s interests.
It makes sense to consider amendment 118 alongside amendment 93, in my name, as both amendments focus on the views of children. Amendment 93 stems from a suggestion from stakeholders that the Government should consider incorporating article 12 of the UNCRC, recognising a child’s right to be heard. Our position remains that implementation of article 12 is not best achieved through a blanket duty. Instead, we require targeted changes, tailored to individual circumstances. Nevertheless, we remain keen to explore how our commitment to article 12 can be realised. Amendment 93 is designed to ensure that children’s views feature in ministerial decision making.
Amendment 118 would go further than amendment 93, by requiring ministers actively to seek children’s views in relation to all decisions. I recognise the value of consulting children and young people, but that must be done in a meaningful way. Amendment 93 addresses that point by offering flexibility around when to consult. For that reason, I encourage members to support amendment 93 as an alternative to amendment 118.
Amendments 119, 120 and 122 represent a radical departure from our current system for protecting children. They would impose on ministers a duty to take all measures to protect children from violence and ill treatment. Although I welcome the intention behind what is proposed and respect Alison Johnstone’s commitment to children and young people, the proposed duty may be impractical and would be impossible to satisfy. Ministers can introduce legislation and policies to protect children, but we cannot guarantee that a child will be safe from violence and neglect in the way that amendment 119 seems to require.
Furthermore, Alison Johnstone’s amendments fail to recognise the central role that many other bodies must play if we are to protect children effectively. Our system does not provide for Scottish ministers to work directly with individual children and their families on a day-to-day basis. Instead, it is founded first and foremost on strong multi-agency working at a local level. That approach continues to deliver an ever-improving system for supporting our most vulnerable children, as is evidenced by the many inspections of children’s services that have been undertaken over the years.
Amendments 119, 120 and 122 cut across all that. They fail to recognise that the people who are best placed to support children are those who have most contact with them and their families. Our focus must be on strengthening those relationships, because that is what our children need.
Getting it right for every child builds on the approach that I have described, and it is through the effective implementation of that model that we will best be able to ensure that all children—including those who are at risk of violence or ill treatment—get the help and support that they need at the time that they need it.
Amendment 121 seeks to recognise the important role that the UN Committee on the Rights of the Child plays in shaping our approach to children’s rights. Although it is important to recognise the excellent work that that committee does, the bill is not the best place to do that. Furthermore, I am not sure what practical difference the amendment would achieve. Any steps taken in response to recommendations by the committee would already be captured by the existing reporting duties under our bill.
The issue with which amendments 123 and 124 deal was debated at stage 2. There is now a well-established expectation that ministers will consult stakeholders as part of the policy development process. Accordingly, there is no need to identify every instance in which consultation is necessary and with which organisations it must be carried out. I am sure that we would all recognise that, when it comes to engaging children, our practice is perhaps not as well established. That is why we took steps at stage 2 to introduce section 1(3A), which will ensure that children will be consulted on ministers’ UNCRC implementation plans.
Amendment 124 would place on ministers a requirement to consult every three years on the steps that have been taken to secure “better or further effect” of the UNCRC. At stage 2, I made it clear that I could not see the value of consulting on a list of steps that ministers had taken with a particular aim in mind. After all, that is quite different from producing a plan of future actions, in relation to which there is scope for influencing activity. That same scope simply does not exist in relation to a retrospective report.
Amendment 125 would require ministers to prepare and publish a statement of UNCRC compatibility for all future bills. There would be a huge degree of overlap between that proposal and the children’s rights impact assessments that are proposed in amendment 126, and a system of unnecessary bureaucracy would be created.
As I made clear at stage 2, the Scottish Government recognises the importance of assessing our decisions against the rights of children, and we are developing a children’s rights impact assessment for use across Government as a direct consequence of the duty in section 1(1). Therefore, amendments 125 and 126 are disproportionate and unnecessary.

Liam McArthur: I listened carefully to what the minister said. She seemed to be concerned that amendment 125 overlaps with amendment 126. That would make sense if she intended to accept either of them, but by the sound of things she will accept neither of them. As I made clear, in the UNCRC action plan that was published in 2008 it was indicated that the Government was committed to trialling CRIAs, yet we have not seen one in the intervening years. When might the first CRIA be piloted under the action plan?

Aileen Campbell: As I have said, we are developing that. That is something that we will achieve in order to ensure that we make rights real for children and that the UNCRC is much more keenly felt across the Government’s wider agenda.
For all the reasons that I outlined before Liam McArthur’s intervention, we cannot support any of the amendments in the group except my amendment 93, for which I seek members’ support.
I add that I respect the role that Liam McArthur, Alison Johnstone and Jean Urquhart have played and the way in which they have set out their arguments. I hope that we can work together to achieve more on the UNCRC and to make rights real for children in Scotland.

Alison Johnstone (Lothian) (Green): It has, at times, been difficult to articulate through this bill the potential impact of the United Nations convention on the rights of the child on children’s lives. Some see the articles in the UNCRC as very technical, but many of them relate directly and emphatically to real and practical improvements in children’s lives. Article 19 of the UNCRC is one such example, requiring states to take appropriate measures to protect children from all forms of abuse, neglect and violence. Although successive Scottish Governments have made progress to be proud of, there is always much more to do. Too many children still live in fear of abuse, neglect and violence and miss out on their childhoods as a result.
I note Liam McArthur’s comments about the lodging of my amendments, but I know that he agrees that we must strive to do all that we can to give children the best start in life. Amendment 119, which uses almost exactly the same language as that found in article 19, aims to ensure that Governments have to do exactly that: to strive for the best and comply with the UNCRC.
The intention is to create an overarching national approach to protecting children from abuse, neglect and violence and to modernise criminal provisions in this area that are now 76 years old. Although the obsolete parts of section 12 of the Children and Young Persons (Scotland) Act 1937 have been repealed, our authorities continue to rely on that statute to protect children from harmful, criminal acts of abuse, neglect and violence and adopting amendment 119 would provide a holistic framework within which we can work to protect children.
I note the minister’s concerns about the adoption of this particular article but I hope that she will respond to my points about modernising the legislation and say how, if amendment 119 does not find support, the Government will progress the protections that protect children in Scotland.

Neil Bibby (West Scotland) (Lab): I welcome the opportunity to speak to amendments 121, 123 and 124 in my name as well as the other amendments in the group. Although I join members of all parties in welcoming the general principle of raising awareness of children’s rights, it is clear that section 1 could—and should—be improved and go further. During the Education and Culture Committee’s scrutiny of the bill, a number of witnesses said that, in reality, this particular section fails to add anything new and lacks ambition. The Law Society of Scotland described the duty that is placed on ministers as a “diluted version of … existing obligations”and it was noted that the bill requires ministers only to “consider” the UNCRC but not to act on or explain those considerations.
If the bill is to avoid becoming what Liam McArthur has described as a missed opportunity, members should support my amendments, which would add a requirement on ministers to demonstrate how they have responded to general comments or recommendations made directly to the United Kingdom by the UN Committee on the Rights of the Child. That would bring the reporting duty more in line with the children’s scheme that is set out in the Rights of Children and Young Persons (Wales) Measure 2011, which contains a duty of “due regard” to the UNCRC and has been widely welcomed by those working with and for children in Wales. It is important that we can properly scrutinise ministers’ actions if we are to ensure that the bill is having the kind of impact that we all want it to have.
On amendment 116 in the name of Jean Urquhart, during the bill’s passage through Parliament there has been a great deal of discussion and debate about the extent to which the UNCRC should be incorporated into law. Amendment 116 would allow us to continue that discussion by placing on ministers a duty to establish a group to consider the merits of incorporating the UNCRC into law and to report back. Any decision on the extent to which incorporation is appropriate would, of course, be a decision for Parliament and would be informed by the best available evidence.
Finally, I am also supportive of the amendments in the name of Liam McArthur and Alison Johnstone. In particular, I draw members’ attention to the importance of seeking the views of children who are likely to be affected by decisions and ensuring that children’s rights impact assessments are carried out on every relevant bill. Having spoken a number of times in the chamber about the importance of listening to children and young people instead of just talking at them, I am slightly disappointed that the minister’s amendment in this respect does not go as far as Liam McArthur’s amendment.
Amendments 116 to 126 as well as amendment 93 would significantly strengthen what is widely regarded as a weak section in the bill. I urge members to support those amendments if the bill is to match our ambition.

Liz Smith (Mid Scotland and Fife) (Con): Over a lengthy period, I have listened very carefully to what has been the most challenging but nevertheless one of the most interesting aspects of the debate on the bill. As I said on the very first day of evidence taking at stage 1, the main difficulty all along with part 1 has been the need to assimilate very different legal perspectives on the bill, especially the need to reach a rational judgment on the need to incorporate the UNCRC into Scots law.
In turn, that meant examining whether the current duties on Scottish ministers are sufficiently strong in terms of protecting children and whether in some cases we have not done enough to enhance the rights of children. In particular, there was a need to ensure that there was a clear understanding of the duties on ministers and those that fall on local authorities and other bodies.
At the end of that process, the Scottish Conservatives do not believe that there is a sufficiently strong case for full incorporation of the UNCRC into Scots law, on account of the fact that some aspects of the UNCRC are not fully compatible with our legal traditions. However, we believe that there has to be more clarity over the rights of ministers, children and their families and, just as important, those of local authorities and other professional bodies. Following those criteria, we will support amendments 117, 118, 93, 121, 123 and 124 but not the other amendments in the group.

Joan McAlpine (South Scotland) (SNP): Like Liz Smith, I listened as part of the Education and Culture Committee to the evidence on this section of the bill. Like the rest of the committee, I came to the conclusion that there was little evidence of how full incorporation of the UNCRC would improve outcomes for children in Scotland.
Paragraph 38 of the committee’s conclusions in its stage 1 report notes:
“the UNCRC is implemented in Scotland in a number of ways already”.
In fact, article 42 is incorporated into the bill and it obliges ministers to promote awareness of children’s rights among children as well as parents. That aspect of the bill has been welcomed by the Scottish Information Commissioner.
The committee’s conclusions also state:“We are not persuaded of the case for full incorporation of the UNCRC into Scots law … We agree that the benefits arising from incorporation of the UNCRC could be realised from improvements in policy and practice, such as through the implementation of GIRFEC.”
Liam McArthur mentioned that Neil Bibby had taken up the cudgels at stage 3. I find it quite strange that it has taken such a long time for Neil Bibby to reach that position, given that he was one of the members of the committee who signed up to those fairly fulsome conclusions.

The Deputy Presiding Officer (John Scott): Minister, would you like to respond to any of the points that were made in the debate? You do not have to by any measure.

Aileen Campbell: Joan McAlpine raised the fact that the committee did not support the full incorporation of the UNCRC, and I reflect again on Professor Ken Norrie’s comments on the bill. Technical difficulties prevent us from accepting Alison Johnstone’s amendments, but there is a firm commitment to ensure that we can work with everyone who is interested, to ensure that we make rights real across Scotland. This is about making sure that we put Scotland on the path towards becoming the best place to grow up, and making rights real is a key part of that.
I will make sure that we work with others across the chamber to allow us to have the proper scrutiny, which, as I set out in my opening remarks, is already there through the Parliament, the Education and Culture Committee and the children’s commissioner. By working together, we can have a bill that we are proud of, with regards to UNCRC provision.

Jean Urquhart: I return to the wording of amendment 116 and reiterate what it would do and what it would not. It would require Scottish ministers to set up a body to consider whether the UNCRC should be given legislative effect. It does not state what sort of body that should be, nor does it insist that the UNCRC should be given legislative effect. It would allow ministers and indeed MSPs to charge that body with exploring all the issues relating to this matter. The body would have to lay its report before Parliament and Scottish ministers would be expected to respond. At no point in that process would there be a burden, responsibility or even an expectation on Scottish ministers and MSPs to commit to giving legislative effect to the UNCRC.
As someone who believes passionately in creating a rights-based society for all, I hope that the option of giving legislative effect to the UNCRC would be explored fully and that the body would conclude that that would be the appropriate thing to do. I hope, too, that the body would provide advice on how and when to do so. However, committing to establishing the body would not commit future Governments or Parliaments to its recommendations. We would still be able to make that democratic decision, which is as it should be.
I have made my views clear on why I think it is important for Scotland to incorporate the UNCRC into our legislative framework, but far greater politicians than me have called on us all to do more for children. Someone said:
“Our children are our greatest treasure. They are our future.”
He also said:
“History will judge us by the difference we make in the everyday lives of children.”
There are many reasons to follow the teachings and words of the late, great Nelson Mandela. Throughout his presidency and his retirement, Mandela championed the cause of children. His love for children and his appreciation of their needs, rights and interests, and of society’s duty and responsibility to protect and nurture them by being child centred and furthering their rights, provide us with more and indeed compelling reasons to do as I suggest.
I uphold my amendment 116.

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