The Bill incorporates the United Nations Convention on the Rights of the Child (UNCRC) into the law in Scotland.
The UNCRC is an international human rights treaty that covers all aspects of children’s lives. It includes civil, political, economic and cultural rights.
The main purpose of the Bill is to “incorporate” the UNCRC, which means it will make it part of Scottish law.
The Bill also does things to make sure that the incorporation works. The Bill says that:
- public authorities must not act in a way that’s incompatible with the UNCRC requirements
- courts will have powers to decide if legislation is compatible with the UNCRC requirements
- the Scottish Government can change laws to make sure they are compatible with the UNCRC requirements
- the Children and Young People’s Commissioner in Scotland would have power to take legal action if children’s rights under the UNCRC are breached
- the Scottish Government must publish a Children’s Rights Scheme to show how they are meeting UNCRC requirements and explain their future plans for children’s rights
- the Scottish Government must review how the Scheme is working every year
- other public authorities mentioned in the Bill must report every three years on what they have done to meet the UNCRC requirements
You can find out more in the Explanatory Notes that explains the Bill.
Why the Bill was created
The Bill aims to ensure that:
- children’s rights are respected and protected in the law in Scotland
- public authorities are legally required to respect and protect children’s rights in all the work that they do
The Bill aims to do this by incorporating the UNCRC into the law in Scotland. This would mean children’s rights are legally protected. Children, young people and their representatives could use the courts in Scotland to enforce their rights. The Bill seeks to make sure children’s rights are part of everyday life in Scotland.
You can find out more in the Policy Memorandum that explains the Bill.
The Scottish Government sends the Bill and related documents to the Parliament.
Related information from the Scottish Government on the Bill
Why the Bill is being proposed (Policy Memorandum)
Explanation of the Bill (Explanatory Notes)
How much the Bill is likely to cost (Financial Memorandum)
Opinions on whether the Parliament has the power to make the law (Statements on Legislative Competence)
Information on the powers the Bill gives the Scottish Government and others (Delegated Powers Memorandum)
Stage 1 - General principles
Committees examine the Bill. Then MSPs vote on whether it should continue to Stage 2.
Stage 1 timetable
Who examined the Bill
Each Bill is examined by a 'lead committee'. This is the committee that has the subject of the Bill in its remit.
It looks at everything to do with the Bill.
Other committees may look at certain parts of the Bill if it covers subjects they deal with.
Who spoke to the lead committee about the Bill
First meeting transcript
The Convener (Ruth Maguire)
Good morning and welcome to the 23rd meeting in 2020 of the Equalities and Human Rights Committee. The first item of business is our first evidence session on the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill, and we will hear from two panels of witnesses. I am grateful to all the witnesses for their attendance.
I welcome our first panel of witnesses, who are Dr Katie Boyle, associate professor of international human rights law at the University of Stirling; Professor Aileen McHarg, professor of public law and human rights at Durham University; Professor Kenneth Norrie from the University of Strathclyde’s law school; and Professor Elaine E Sutherland, professor of child and family law at the University of Stirling. Thank you for joining us.
I remind members that, if their question is addressed to a specific witness, they must identify the witness by name; otherwise, we will work to the order in which witnesses appear on the agenda. If witnesses feel that they have nothing to add in response to a question, they should not feel that they have to comment—please simply say that.
We have a lot to get through and a limited amount of time. I appreciate that we are working with this wonderful technology and that the bill includes technical details, but I encourage members and witnesses to keep questions and answers succinct to allow us to get through as much as possible. Please allow a few seconds for broadcasting staff to operate your microphone before you begin to ask a question or provide an answer.
There is strong support for direct incorporation of the UNCRC into Scots law. What are your views on that approach? What are its potential benefits or disadvantages?
Dr Katie Boyle (University of Stirling)
Thank you for the opportunity to speak about the issue. On the benefits of the bill, it is almost self-evident that, if better rights protection for children is introduced, children will have better access to their rights. What is particularly innovative about the approach is that it uses existing public law remedies, so we are already familiar with the framework and the way in which it protects those rights under the European convention of human rights. There are also innovative mechanisms to ensure that, if something goes wrong, children will have access to a remedy. It is particularly welcome that, if all else fails, there is a remedy in the court—that is a key and important aspect of incorporation.
The way in which the bill operates is that it will embed rights compliance in the work of the legislature, to a degree, and to a greater degree in the work of the Government and public authorities. It will also offer the court a role in protecting rights. That model of incorporation will embed rights compliance across those roles of the state.
Where there is scope to go a little further is in enhancing the Parliament’s role and ensuring that public authorities understand their duties and fulfil their positive obligations, and that the role of the court is clear on what it can do to meet the threshold of an effective remedy. We must also ensure that there is human rights accountability for children if public services are privatised.
Professor McHarg, I understand that you have been having difficulties with the technology. Is it okay for me to bring you in now?
Professor Aileen McHarg (Durham University)
I think so, convener.
I do not have a strong view on the desirability or otherwise of incorporating the convention. The bill is interesting from the point of view of domestic protection of fundamental rights. As Dr Boyle said, in a number of ways, it goes beyond existing models in both the Human Rights Act 1998 and the Scotland Act 1998—[Inaudible.]
Professor McHarg, the sound seemed a bit fuzzy there. I think that we are losing your connection. If you do not mind, I will move on to the next witness and we will come back to you.
Professor Norrie, will you comment on the potential benefits and disadvantages of the bill’s approach?
Professor Kenneth Norrie (University of Strathclyde)
Good morning, everyone. The advantages of making children’s rights absolutely central to policy making and law making in the way that public authorities operate are self-evident. The question is whether the bill’s approach is the right way to go about that.
I should prefer a different approach. For a whole host of reasons, I am not particularly keen on the structure of the United Nations Convention on the Rights of the Child. One simple reason is that it is worded very much not in terms of rights; primarily, it imposes duties on state signatories to the convention, which of course we might interpret as giving rights. However, to me, good law is accessible law. Particularly when we are dealing with children and their rights, if we want to be able to say that they have rights to do X, Y and Z, they have to know about it. For them to read that the state has an obligation to protect X, Y and Z does not help.
I should much have preferred for the bill to have gone through every one of the substantive rights in the UN convention and converted them into rights. I will give a simple example. One of the convention’s provisions says that state parties have to set a minimum age of criminal responsibility. In Scotland, we have done so very recently—or, at any rate, we increased the minimum age here. It would have been the easiest thing in the world to have said that children below a certain age have a right to have their behaviour dealt with in a welfare-based system rather than by the general courts. That is just one example of what I should have preferred the bill’s approach to do.
My other major problem with the UN convention is a fear that, once it is incorporated, we will think that children’s rights have been sorted and we do not need to go any further. We must remember that the UN convention sets minimum standards. A lot of rights are completely ignored in it, partly due to its history as a worldwide convention that tries to encourage every member state on the planet to buy into such rights.
Two very obvious things are missing from the convention. The right of a child to his or her evolving sexuality or gender identity does not appear; nor does a right not to be forced into marriage. There are all sorts of other things, such that, if we had started afresh and decided what rights were appropriate for children in Scotland in 2020, I think that we would have come up with a very different list.
Thank you—that is very interesting. We will go back to Professor McHarg, who is back with us.
The point that I wanted to make is similar to Professor Norrie’s. The key way in which the bill’s approach differs from that in, say, the Human Rights Act 1998 is that, for the UN convention, there is no body of authoritative interpretation that the Scottish courts are instructed to take into account. That gives them a wide degree of interpretative freedom. The impact that that would have in practice would depend very much on what the courts do or do not do with it. As Professor Norrie said, if the convention is structured around duties rather than rights, the bill might have less impact than is anticipated.
I will bring in Professor Sutherland now.
Professor Elaine Sutherland (University of Stirling)
Thank you for giving me the opportunity to participate in the discussion. I endorse everything that Dr Boyle said. She summarised beautifully the many benefits of the convention and of incorporation.
I take the point that the convention, like any instrument, has the characteristics of its time. Professor Norrie is quite right that the convention does not address squarely issues of gender identity, but there is a lot of other material from the United Nations Committee on the Rights of the Child that elaborates on rights in the convention—[Inaudible.]—for example, and a number of others that allow for protection of those things. We therefore part company there, because it would be unlikely, even if we passed our own statute now, to cover—[Inaudible.]—that we might want to respect for children in the future. An important thing to remember is that there is a living element to the convention, which comes about in a number of ways.
I will take the opportunity to clear up something that leads to misunderstanding about the convention. There are occasions when Scots law already—[Inaudible.]—the convention, and one of the most obvious examples is that, although the best interests of the child are simply a primary consideration in the convention, the welfare of the child is generally the paramount consideration under Scots law. It is sometimes suggested in discussions about the convention that that means that incorporating the convention will reduce children’s rights. I want to make it absolutely clear, in case committee members are not aware of this, that the UN convention makes it clear that, where domestic law gives a child more rights, the convention does not in any way diminish those. I wanted to clarify that, because that misunderstanding floats about.
I also want to make the point that, although there is no court on the rights of the child that is equivalent to the European Court of Human Rights, so we do not have that kind of authoritative statement about interpretation, there are many other tools in the toolbox for interpretation. [Inaudible.]—the general comments and the concluding observations of the UN committee, and there is the protocol 3 opinion of the UN committee under that, which deals with individual cases.
We were asked to keep our answers brief. If you would like me to expand on what I mean by those other resources from the UN committee, I will be happy to do so, but I do not want to run over my time.
We will have opportunities to probe matters further as we move through the evidence session. Those were helpful clarifications. We are having a bit of a problem with the sound and picture dropping out, but we are getting what you are saying. If it persists, we might turn off your video so that we can hear you loud and clear, as your words are the most important thing.
We move on to questions from committee members, starting with Mary Fee.
Mary Fee (West Scotland) (Lab)
I want to explore sections 4 and 6 of the bill with the witnesses. Should the interpretation of the UNCRC, which is set out in section 4, be expanded to take account of the general comments and concluding observations of the UN Committee on the Rights of the Child or any other international human rights opinions or treaties? If so, might there be any unintended consequences of doing that?08:45
The second area that I want to explore is the definition of a public authority, which is laid out in section 6. Concerns have been raised about that. For example, we have heard that children’s hearings and other agencies will not automatically be defined as public authorities, which could bring problems and issues. Should the definition be expanded to bring every organisation under the umbrella or scope of being a public authority?
There is a second issue relating to public authorities. Is the bill clear enough about what a public authority should do if it is faced with secondary legislation that is enforced, but is incompatible with the UNCRC requirements?
I am sorry to ask so many questions, but in the interest of time I wanted to get through as much as I could.
I am glad that you asked the question about section 4, which my colleagues have already picked up on. I recommend that the interpretation clause be amended. Professor Norrie highlighted that, without clear instructions about what rights mean in practice, it is very hard for duty bearers, the judiciary—when it is interpreting rights—and, primarily, children to know what they mean.
There are different models of incorporation and different ways in which that can be achieved. One is the direct incorporation of the treaty, which is what the bill seeks to do. A way to address what is called the indeterminacy critique—the idea that some rights in international law are too vague—is that we need to be able to have regard to all the different instruments that help to explain the substance and content of rights.
This is not the first time that the issue has been tackled. For example, rights in the South African constitution, which include economic, social, cultural, environmental and children’s rights, are interpreted such that courts must have regard to international law and may have regard to comparative law in order to help them. Although the UNCRC Committee is not technically a court, it takes on a quasi-judicial function and, as Professor Sutherland highlighted, there is a body of jurisprudence under the optional protocol to the convention.
That is not to suggest that other international human rights law, such as other UN treaties, should not be included in the interpretation clause, because I think that they should. We need to have reference to other bodies in order to fully understand how the UNCRC has been developed and interpreted over time, particularly in relation to children’s economic and social rights. I recommend that the interpretation clause be expanded to include treaty body decisions, optional protocols, general comments, recommendations and comparative law.
In relation to unintended consequences, there might be a fear that that would make all those decisions binding, but that is not what an interpretation clause does. It asks the interpreter to have regard to the other instruments in order to help them to understand the meaning of the rights. Ultimately, they can weigh up the different instruments and types of interpretation and then give meaning and substance within the context of Scotland. There is a margin of appreciation of how rights are interpreted domestically—that is how international human rights law works. The more help that is given to the interpreter, whether that is the duty bearer, the child or the court, the easier it will be. I say without any hesitation that it is necessary that there be a more expansive interpretation clause in order for the bill to work.
On the public authority question, the major concern for me is that the model that is employed mirrors that in section 6 of the Human Rights Act 1998. Although that might have been the most helpful way of trying to capture the acts of private authorities that performed public functions at the time, the way in which that has been interpreted by the courts has proved to be extremely unhelpful in knowing who is responsible for what, at any time, when public services have been privatised.
For me, the major concern is that, when children interact with any form of public service that has been outsourced to a private body, they may ultimately not have the human rights protection that they deserve. Different means are available to address that—for example, we might use the more expansive definition that has been developed in case law.
I will not go through the full history of all the cases, but if you look at the case law, from YL v Birmingham City Council to the Ali v Serco Ltd case in Scotland, you will see that the motivation of the private provider currently supersedes the protection of the rights holder—in this case, the children. That needs to be flipped so that the children’s rights supersede the motivation of the private provider. There may be different ways to achieve that aim. If that is what the bill seeks to do, the provision in question needs to be revisited, because the case law does not provide a helpful or stable basis in respect of private functions.
I have spoken at some length. I did not quite catch the end of the first part of Mary Fee’s question. I am happy to come back to that, but I am aware that colleagues will want to comment, so I will defer to them.
I agree with what Dr Boyle said. The definition of “public authority” in section 6 is, as Dr Boyle said, based on the Human Rights Act 1998, so I do not think that there is any concern that children’s hearings will not be included in its scope. As far as I am aware, children’s hearings are regarded as a public authority for the purposes of the 1998 act, so that is not an issue.
However, as Dr Boyle said, it is the definition—[Inaudible.]—and it is worth looking at the Victorian Charter of Human Rights and Responsibilities Act 2006, in Australia—[Inaudible.]
I am sorry, Ms McHarg, but your sound totally dropped there. I ask broadcasting to cut the visuals, and I ask you to start your answer again so that we can hear you clearly.
On the definition of “public authority” in section 6, I agree with Dr Boyle that there is real concern around how that will apply to private providers that carry out functions on behalf of the state. For a model, it is worth looking at the Victorian Charter of Human Rights in Australia, which was drafted with the problems of the Human Rights Act 1998 in mind and makes it much more explicit that contracted-out providers are to be included in the scope of the legislation. In order to prevent the bill from being interpreted in the same way as the 1998 act, the drafting needs to change.
My answer to all the questions from Mary Fee is to ask members to remind themselves of what the bill is designed to do. It is not just about giving rights that are enforceable in a court of law. It is also about changing hearts and minds, and the way in which all of us in society, including private authorities and courts, parents and teachers—whoever is making decisions, and policy decisions in particular—to keep children at the heart of their consideration. I am not saying that children’s rights have the edge, but they should be at the heart of consideration.
If that is correct, it follows that we need as broad a range of sources as possible to help us to interpret the specific provisions. We also need as broad an interpretation as possible of what constitutes public authorities, or bodies that carry out public functions, in order to achieve a real change in the way that we, as a society, deal with children.
I hope that the committee picked up the important point that Aileen McHarg made about children’s hearings, which Mary Fee mentioned. There is no question but that a children’s hearing is a public authority. Section 6(3)(a)(ii) states that “a court or tribunal” is a “public authority”, and there is no question but that a children’s hearing is a tribunal. That is clearly in the bill as it stands.
One thing about being the last to answer is that I am going to use the word “endorse” quite a lot. I echo what Dr Boyle and the other speakers have said, and I think that we are all on the same page in saying that the more tools there are in the toolbox of interpretation, the better.
The person who is doing the interpreting has discretion about what they use and how much they rely on those things, although that is not always true of certain higher court decisions. Generally speaking, however, they will look more broadly at human rights sources, and on this matter they will look particularly at the work of the United Nations Committee on the Rights of the Child and some other human rights bodies. It is very important that the court has that in its mind when it is interpreting rights under the convention. As far as section 4 goes, that is definitely important.
There is one wee technical point that I do not think has been picked up. Under section 4, the sources that the court is referred to are the convention and the first two optional protocols, which have been ratified by the United Kingdom. The wording is that the court “may” take those things into account. I would be inclined to turn that into a “must” or “shall”. That is an important distinction, because it would seem odd, when looking at convention rights, not to look at the convention and, where relevant, the optional protocols.
That is all that I have to say on section 4 except that we should keep the range of sources used in interpretation as broad as possible.
On section 6, I again endorse everything that has been said about where public services have been outsourced to private providers. I agree with the other witnesses that the law has not necessarily ended up where we thought it would. It is very murky and unsatisfactory, and therefore we definitely need to look again at the issue of private providers of public services.
One other point that I would raise is to suggest adding the Scottish Parliament to the list of bodies. That would seem to me to be a beneficial addition, instead of there just being the Scottish ministers and courts or tribunals.
Mary Fee, do you wish to come back in?
The only question that I still have—perhaps the witnesses did not cover this because my initial question was so long—is on what a public authority should do if it is faced with secondary legislation that is in force but appears to be incompatible with the UNCRC requirements. Perhaps the witnesses can briefly touch on that.
Katie Boyle, can we come to you?
I will defer to my public law colleague, Professor McHarg, on that question. There is an ability to interpret in so far as is possible.
There is an interesting difference between section 6 of the bill and the Human Rights Act 1998. The 1998 act gives public authorities a defence if they had no choice but to act in the way they did because of legislation that was in force. There is no such defence in the bill. In that respect, it is modelled on the Scotland Act 1998, rather than the Human Rights Act 1998. That creates an interesting potential anomaly, whereby the Parliament retains the power to legislate contrary to the convention in the future, but ministers do not have the power to act contrary to it. It would be worth while resolving that conflict.09:00
Aileen McHarg has given the public law perspective but, from the private law perspective, it seems to me that a public authority has to follow what the law says; it has to follow its duties under primary and secondary legislation. It is not for the public authority to make a decision that legislation is inconsistent with the UNCRC—that is a matter for the courts. I should have thought that a public authority’s safest action would be to follow the law until such time as it was told that that law was inconsistent.
Fulton MacGregor (Coatbridge and Chryston) (SNP)
As we know, part 2 of the bill, rather than requiring the creation of a new body, envisages that existing courts and tribunals will authorise the judicial remedies that are proposed in the bill. Do you think that those existing courts and tribunals are accessible to children and young people? If not, what improvements would be required there or with the bill more generally?
The way that the remedies are set out in the bill is what I would call a high-level skeletal framework, which deals with what the court can do with problematic legislation. Under section 20, it can retrospectively strike down legislation that is incompatible and, under section 20(5), it has the power to suspend the effect of those strike-down powers. It can also issue a declaration of incompatibility if, for example, legislation that is incompatible is passed after the bill and it is not possible to interpret it so that it is a compatible subsequent piece of legislation. That is all about dealing with legislation.
Under section 8, courts and tribunals can issue remedies that they deem to be “just and appropriate”. For me, there is an emerging gap relating to how to deal with what would be deemed to be effective remedies under international human rights law. The UNCRC and the UN committee demand that, if we are to incorporate the treaty, we need to make redress available for unlawful acts. The legislative provisions should cover not only the unlawful acts but what happens if the decision maker does not comply with the legislation before it in a UNCRC compliant way. It is about how children access effective remedies when something goes wrong, and not just in relation to those big skeletal acts.
Two things need to be further fleshed out in the bill. The first is that we need to introduce a child-friendly complaints administrative system. The idea is that, if something goes wrong, the first port of call should never be the court. We should first exhaust other administrative mechanisms, which must be sensitive to children’s needs. A review is needed of how that operates in practice, because, as we see from the witnesses today, those rights cut across all different areas of law. It is not just a family law, immigration or education issue; it is about the provision of rights to children across different fields. We need to look at whether the administrative complaints system is child friendly and, again, the UNCRC implicitly requires that system of redress.
Ultimately, and in order for the UNCRC incorporation to work, people also need access through the court to an effective remedy for violations. There must always be a court there as a means of last resort. We are familiar with the idea in section 8 of courts issuing remedies that they deem to be “just and appropriate”. That works in practice in other respects. The courts must consider many different factors and strike a balance in considering what is just and appropriate.
Courts might sometimes be quite deferential in their remedies, which is perfectly okay. The court has a whole list of remedies that it can use. In some instances of UNCRC violation, the court might have to be more interventionist to help children to access a prompt and effective remedy that deals with the issue at hand. Using damages alone will not suffice to meet children’s needs. I recommend either that the bill should include the right to an effective remedy, or that the courts should have to strike the balance of ensuring that remedies are just, effective and appropriate.
Dr Boyle has helpfully pre-empted my second question. Will the other witnesses, as well as answering the initial question, also go on, as Dr Boyle did, to tell us about the remedies that courts and tribunals could provide, and about how effective those might be in practice for children and young people?
The remedies in the bill are largely modelled on those in the Human Rights Act 1998, but there are a couple of important differences.
One difference is in the time limits. Those have appropriately been extended so that the time does not start running out until a child reaches the age of 18.
The other important difference in enforcement is in the role of the Children and Young People’s Commissioner Scotland, who has the ability to intervene in proceedings and to bring those proceedings without relying on a child to do so. That is a huge improvement in enforceability.
With regard to the legislation, the courts are public authorities and so must exercise their powers in a way that is compatible with the convention. That might require them to take steps to improve or change their procedures or to improve accessibility.
In a more general sense, accessibility comes from the availability of finance. It is also a question of people’s knowledge of their rights and obligations. Something that is missing from the bill—although it is in the Welsh legislation to incorporate the convention—is the duty to publicise the rights that children and young people have under the convention. It might be worth thinking about adding that educative duty to the bill.
I want to pick up on Aileen McHarg’s point about the Children and Young People’s Commissioner Scotland. That office is essential to the effective implementation of the legislation. There must be a massive and increased investment in funding for the commissioner’s office so that the commissioner can operate effectively for all children and to ensure that the commissioner has the capacity to intervene when appropriate.
The commissioner is central for another reason. One of my fears about any concept of children’s rights is its vulnerability to hijack. Very often, children’s rights are hijacked to serve adult interests, and debates that go to the court, which are structured as if they were a children’s rights issue, are actually nothing to do with the child—they involve adults arguing it out. I will give two examples of that.
A couple of years ago, there was a really interesting case in England in which a child sought a declaration under the Human Rights Act 1998. The child argued that the rule that a sperm donor is not in law the father of the child, which also applies in Scotland, was an infringement of the child’s right to family life. There is an interesting argument to be had about where genetics fits in to how we define parents, and that is how the court dealt with it. That child was three years of age. I said that the child was arguing in court but, of course, the child was not arguing in court; what was really happening was that the adults were exploring an issue for adults.
Another example is from Hungary, which is currently debating an amendment to its constitution to give children the right to live in the gender identity into which they were born. Just think about that for a moment. It is nothing to do with the rights of the child always to retain the gender identity into which they were born; it is about the adults saying, “Let’s not have anything to do with gender recognition, gender reassignment or anything like that.”
My fear is that children’s rights issues will be hijacked. The role of the Children and Young People’s Commissioner Scotland is a crucial protection in that regard, so I would very much enhance that role. There are powers in the bill to intervene, but I would like them to be much stronger.
I will backtrack to where I think Mr MacGregor’s question began. If I understood it properly, it was about how accessible the legal process is to children.
The bottom line is that the legal system is designed by adults for adults. In fact, it is intimidating to a lot of adults, so how much more so must it be to a child?
From the child’s perspective, our problem begins with the fact that many children do not know that they have rights. If they have any concept of rights, they probably do not know much about them, and they do not know what they are. That goes right back to our not educating in schools about children’s rights.
It is a constant frustration to me that children’s rights are not addressed as a compulsory aspect of the curriculum in all schools from an early age. Why that does not happen is a bit of a mystery to me. The United Nations Committee on the Rights of the Child has lots of resources on its website and elsewhere to help design courses that would enable children to explore children’s rights. Those can be used in educating children from a very young age through to more sophisticated education for teenagers. In Scotland, we need to make that a mandatory part of the curriculum so that children grow up learning that they have rights and incrementally learning more and more about them.
On embedding all those things into the whole of Scottish society, the bill and the act that I hope it will become should be accompanied by public education on children’s rights, because it is more than apparent that many adults in Scotland are not getting it, either. On education, the first step to children having any hope of using the legal system is for them to know that they have rights and to understand what their rights are. Along with that goes the education of the adult community, and not just of the professionals, such as school teachers and social workers who discharge particular functions, although they should be included in education that is perhaps tailored to those functions. Education of the whole community on children’s rights is important, because it will be an essential part of the puzzle to make it all coherent.09:15
It is absolutely essential that there is a legal remedy. Being able to go to court is the big step that makes those who are under duties to do certain things remember that they have to do them. That remedy has to be there in the background, although it should be a last resort. Instead of that, we need child-friendly complaints procedures in all the places where we find children—wherever children are, there should be a child-friendly complaints procedure. Children should not be even thinking of going to court, because it should not get to that point.
Advocacy services are another crucial part of the puzzle. Someone should be there to help a child to pursue their rights. Many parents do that on behalf of children, but we have to remember that the parent is sometimes the source of the problem, so it cannot all be left to parents. There are also children who do not live with their parents. Where the state takes on the caring obligation, whether through foster or residential care, the child must have the opportunity to raise issues if their rights are not being respected. In all those places, we need complaints procedures, and the child needs to know that there is someone independent of the organisation who can help.
Professor Norrie highlighted the important role of the children’s commissioner in that respect, which I completely endorse—there I go with that word “endorse” again—but there must be other people in a position to do that, too. It cannot all be left to the commissioner. We must consider developing a child advocacy service. One is just starting up in respect of the children’s hearings system, which is perhaps a model that could be taken further.
It is important to clarify in the legislation who can bring actions, which might not simply be actions in respect of a single child; it might be actions in respect of groups of children, or a class action approach.
There is a big role for adults in helping children to pursue their rights, which we cannot leave to children alone. A crucial part of that is ensuring that children know that they have rights and know a bit about what they are.
Katie Boyle wants to come back in, but, before she does, I say that I endorse what you say about education but it would be remiss of me not to mention the many children and young people who the committee has met through its outreach work who are very switched on to their rights and are learning about their rights in innovative ways. We have had contact with the Children’s Parliament, the Licketyspit theatre company, Who Cares? Scotland and Aberlour. There is lots of good work going on out there. I endorse your point, but I want to acknowledge the children and young people and their supporters who are already doing that work.
I want to pick up on Professor Sutherland’s point about systemic issues and the effectiveness of the current mechanisms that are used. The court already has the power to grant different types of remedies. It can compel things to be done , it can stop things from happening and it can quash decisions. There is the opportunity through the bill for the court to award damages.
What is typical of human rights cases is that the remedy tends to be compensation. That is not a bad thing, as it can help with an effective remedy. However, some of the rights—in relation to the treaty and to international human rights law more broadly—that would be incorporated through the bill would require the court to adapt to new ways of dealing with systemic issues.
I often use the example of the Napier v the Scottish ministers case, which was about prisoners slopping out in prisons. When the case came before the court, the court found that that was a violation of article 3 of the European convention on human rights. The court responded to that by issuing damages to the lead case, and all the others behind that case could seek damages, too. That was a systemic issue; there was a systemic problem in the prisons and, rather than issuing an order for prison authorities to fix the problem, the court responded to it—in a way that was quite right within its sphere of competence—by issuing damages as a way of encouraging the Government to change its behaviour.
Under international human rights law, when systemic issues arise in relation to economic and social rights, for example, you often find that the issue is of a collective nature and it is not appropriate to rely on the individual rights-based model of one person bringing the case and other cases being sisted behind it or on the new Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018, which looks at the individual rather than the collective systemic issue. Therefore there is a lot more work to be done on how to issue structural orders. The national task force on human rights leadership, which I also advise, is looking at that. It is about considering how to respond legally to systemic issues when they arise. For example, in other countries where there are such adjudications, a court might in some way group together cases in which there is a systemic issue and issue a structural order, which may include asking different parts of Government authorities, public authorities and possibly private authorities that perform public functions to do different things to fix the original violation. That is a new way of looking at such issues that deals with the original problem rather than relying on compensation to encourage better compliance. That is something to think about for how we approach the issue and, of course, it would require an adaptation in how the judiciary operate.
Theory and practice tell us that it is better to help the judiciary by explaining what is expected of them in a bill, so the more clarity and the more instructions you can give to help them in their duties, the better. Perhaps there is room to refocus on what it means to be effective and ask what the threshold is for an effective remedy, and there is case law on that. The courts were used to doing that under European Union law, but we have now lost the right to an effective remedy under EU law as a result of Brexit. We have the right to an effective remedy under the ECHR but, again, that was not incorporated as part of the Human Rights Act 1998, so there is a gap in provision there. The UNCRC bill presents an opportunity to address that gap for children.
Gillian Martin (Aberdeenshire East) (SNP)
I have a couple of questions that I will run together, in the interests of time, on who can bring court proceedings and the time limit on them, as set out in the bill. We have already discussed the Children and Young People’s Commissioner Scotland having the right to bring court proceedings. Section 7 of the bill says that an individual or organisation can raise court proceedings in respect of an alleged breach of the duty on public authorities. For judicial review actions, an individual or organisation would also require to demonstrate sufficient interest to be able to bring proceedings. Are you happy with that overall approach, what is your interpretation of what that would mean and how do you assess that? I would also like to hear your views on whether it is correct to exclude the period when a young person is under 18 for calculating the time limit for raising court proceedings under section 7. In our submissions we have had some mixed views on that, so I am interested to know what the witnesses think.
I will first take the point about excluding counting the time before the child has reached the age of 18. I think that the bill has to have that. It is a question of limitation and—[Inaudible.]—proceedings if some wrong has been done to a person, and it is entirely appropriate that we do not count time during which a child or young person is under a particular age. This goes back to Professor Sutherland’s point about education, in that children tend not to know what their rights are. They often do not understand that a wrong has been done to them until they are older and more mature. It would be very wrong to have the same period for a wrong done to a six-year-old as a wrong done to an adult. The reason for that is obvious. Therefore, I endorse the provision as it stands.
It generally fits into the legal system as a whole that you have to be personally affected by an issue before you can raise that matter in court. There need to be exceptions to that, and again I come back to the Children and Young People’s Commissioner Scotland. We should not need to wait until harm is done if a body such as the commissioner has identified a rule of law that has potential to do harm. Therefore, I would make exceptions but think that the general principle that a person has to be personally affected is good.
In response to the question about age, absolutely. To pick up on my response to an earlier question, I would say that there are still issues about children knowing what their rights are. There is a big issue with non-lawyers not identifying problems as legal problems. Very often, people identify when something rotten has happened to them, but they might not identify it as a legal problem
There are also obstacles in that, even if a child knew that some legal wrong had been done, they would have to find the right kind of solicitor to take the case and navigate through the legal system. Meanwhile, the clock would be running if we did not have the provision that disregards the period of time prior to the child being 18. Therefore, I am 100 per cent behind the provision.
The objection that I have seen raised is that it will delay legal proceedings. We are all well aware that delays in legal proceedings involving children can be very harmful to the child. There are numerous occasions on which the court has raised that point. Indeed, the Children (Scotland) Act 2020 highlighted that delays in dealing with cases involving children are generally a bad thing and that courts should be aware of that.
However, all that this provision does is give a child a benefit; it does not prevent the child from bringing the case as soon as he or she is aware that it is a possibility. The child can bring the case before the age of 18; it is only that the general time limit of one year to raise a case will not apply to children until they reach the age of 18. Therefore, I am very happy with that provision and do not see the danger. I do not see why it would delay cases, although in the later part of this morning’s meeting, I think that you will hear from at least one speaker who believes that it would.
The other question is about who can bring proceedings. I can see why the way the bill is drafted is a bit confusing, because I do not think that it is as clear as it could be on that point—what does “having an interest” mean, exactly? There is a body of case law on that kind of thing and, as Professor Norrie pointed out, generally a person has to have some personal interest in a case before they can bring it. They cannot just bring a case on some abstract issue of injustice that happens to bother them.
The whole point about the bill is that it did not adopt the victim test, which is very important. It differs from other human rights provisions in that it does not say that a person has to be a victim. That was a very deliberate decision and the result of a lot of lobbying at earlier stages.09:30
However, that still leaves a lot of ambiguity about the role of third parties bringing cases—class actions—as Dr Boyle explained earlier. There is great value in class actions as a way of having the rights of whole groups of people respected. Therefore, although the Children and Young People’s Commissioner Scotland is mentioned specifically, which is a good thing, more clarification is needed of who can bring the action. The policy memorandum is written in terms of sufficient interest, which would be the usual test, but my suggestion is that it should not be the usual test for who can bring cases. In addition to the commissioner, there ought to be a formulation that would allow other bodies, such as non-governmental organisations, to bring actions in respect of children’s rights, so that there would be a broader opportunity for challenge.
There is a misconception about what the sufficient interest test means in judicial reviews. It is a relatively new test that has been interpreted very widely, so it does not necessarily require a personal interest and it allows for representative standing, which means that groups can bring actions on behalf of their members where their members are affected. It also allows for public interest standing, so that people can bring cases if there is a general point of law that needs to be resolved in the public interest. As Professor Sutherland pointed out, the bill does not employ the victim test. Under the Human Rights Act 1998, the victim test has precluded those kinds of representative and public interest cases. The absence of the victim test means that the normal rules of standing in public law and judicial review cases will apply, and that is now interpreted very widely.
Can I bring Katie Boyle in now on the questions on who can bring court proceedings and the time limits for those?
I do not have anything to add. My colleagues have covered everything in that regard.
We will move to questions from Alexander Stewart.
Alexander Stewart (Mid Scotland and Fife) (Con)
Part 3 of the bill refers to the children’s rights scheme and the child rights and wellbeing impact assessment. On the provisions for the children’s rights scheme, it has been suggested that the bill’s language could be stronger. Do witnesses agree with that? Should anything be added to the scheme? What are the witnesses’ views on the legal duty of ministers under the legislation to prepare child rights and wellbeing impact assessments, and to what extent should ministers have discretion in dealing with decisions of a strategic nature in relation to children’s rights and welfare?
I will respond on the children’s rights scheme. The idea of the scheme is to help ministers to meet their obligations under the treaty. There is a read-down that the state obligations become obligations of ministers and public authorities so, in a sense, the scheme helps them to take the steps to demonstrate that they are meeting some of the obligations under the treaty. The obligations relate to, for example, participation, the awareness and promotion of rights and budget processes. The bill is phrased such that the scheme “may” take those things into consideration. That might be appropriate for some rights under the convention, but the state has other positive obligations in relation to economic and social rights in the bill, for example.
My concern is that the list in section 11 is not exhaustive and that, in relation to some rights under the convention, there are obligations, not discretionary things that can be taken into consideration. It would be helpful to broaden out an understanding of what the duties mean in practice. It is important that support is rolled out for decision makers, as well as for ministers and Parliament, so that there is understanding of the content of the rights, what they mean and how to meet them in practice.
Other positive obligations include, for example, taking steps to realise rights and ensuring that the state has the mechanisms in place to respect, protect and fulfil rights. For some rights, there is a minimum core obligation—a more immediately achievable level of right has to be achieved, and children should not fall below that level.
There are also progressive duties under international human rights law and the convention that relate to non-discrimination and the state meeting the maximum available resources, which is a necessary component. It should be ensured that resources are deployed in an effective, efficient, adequate and equitable way. Such duties should fall under the scheme. We should also ensure that there is no regression on rights and that there is access to effective remedies.
There are other types of duties under the treaty, so the scheme could be clearer. You could ensure that it is clear that the list is not exhaustive, or further clarity could be provided with regard to the other obligations. As I said, I am not totally comfortable with the idea that the obligations are discretionary rather than compulsory.
I will bring in Aileen McHarg on Alexander Stewart’s questions about the strength of the language that is used in relation to the scheme, and on child rights and wellbeing impact assessments.
The only point that I want to make is that the obligations apply only to the Scottish ministers. The policy memorandum says that other public authorities will be “encouraged” to do those things, but they are not obliged to do so. That is a gap.
The obvious analogy is with the Freedom of Information (Scotland) Act 2002. All public authorities that are subject to that act have to draw up publication schemes, which is an important way of proactively ensuring transparency, rather than relying on people to enforce rights individually. I would like such things to be more broadly applicable.
The difficulty relating to the definition of a public authority is that, unlike the 2002 act, the bill does not specifically list the bodies that are covered by it. You would need to define precisely which bodies were covered. I would like a broader range of bodies to be included.
In case I do not get to say this later on, I note that it is important that, when ministers make compatibility statements when introducing legislation, they have to reason those statements in terms of the impact assessments. That is a huge improvement on the model that is used in the Human Rights Act 1998 and the Scotland Act 1998, under which reasons do not have to be given. I can see the case for making the obligation to draw up an impact assessment broader, but we will get into definitional issues.
I ask Professor Norrie to comment.
I do not think that I have anything useful to add to what has already been said.
Does Elaine Sutherland wish to add anything on those matters?
I do. I have a couple of terribly technical points, the first of which Dr Boyle covered rather fully. It concerns the difference between the words “must” and “may”. As she said, under the children’s rights scheme ministers “must”—as opposed to “may”—do certain things. I think that we are all very clear on the importance of that distinction, so I will not take up the committee’s time by going into too much detail on it.
There is another low point. It was from section 1 of the Children and Young People (Scotland) Act 2014 that we first got the idea of ministers having to report to the Scottish Parliament on what they were doing on various aspects of children’s rights, one of the most important being what they would do to promote and strengthen such rights out there. That provision requires ministers to report every three years. The 2014 act gave a date for when their first report had to be lodged, which was within three years of the section coming into force.
That approach will go under the bill, because there will be a new approach to reports from the Scottish ministers under the children’s rights scheme. Under that, they will report about what they are doing on children’s rights a lot more—and they will have to do so every year. It will be good to have more frequent reporting and more accountability. However, I can see nothing in the bill that indicates when that first report has to be made. If I recall correctly, all that it says is that ministers must indicate in the scheme when their first report will be.
When that first report must be produced is therefore entirely within ministers’ discretion. Under the scheme, they could decide that they will produce it five years down the road, which would be a longer interval than is provided for under the 2014 act. Thereafter, they would have to report every year. However, at this stage there is nothing to trigger or activate the whole process. Therefore, we need to consider having a provision parallel to that in the 2014 act, which would say that the report had to be produced within a year of the section coming into force.
That brings up another issue that is vaguely off at a tangent, but which I would like to raise now because I am afraid of not getting it in at some point. It concerns the business of ministerial discretion about when things happen. That raises a point about section 40 of the bill, which covers when the act would come into force, assuming that the bill is passed. Again, that is left entirely to ministerial discretion. Although that does not concern the children’s rights scheme, it leaves another aspect to ministerial discretion. That seems to be a flaw that permeates what is otherwise, in many respects, a very good statute. There is too much discretion for ministers on when they have to produce their first report and on when the bill as enacted would come into force.
I am not sure that I have anything to add on impact assessments, save to say that, again, there is an issue with there being too much ministerial discretion. Ministers must prepare such an assessment
“in relation to such decisions of a strategic nature relating to the rights and wellbeing of children as they consider appropriate.”
That is another example of there being huge opportunity for exercising such discretion, which I would like to see being reined in a bit.
Katie Boyle would like to add some comments to her previous remarks.09:45
In the children’s rights scheme, the reporting procedures and impact assessments help decision makers and duty bearers to comply with their obligations, but they do not dispense with those obligations. There are positive duties that duty bearers must take, regardless of whether those mechanisms are in place. This is just a means of helping with implementation. It does not absolve those duty bearers of other obligations; they must take positive steps.
Professor McHarg highlighted the issue of the public authority. The Parliament is not covered by that definition, and it also has obligations in relation to the treaty that are not in the bill. The administrative sphere of decision makers, including public authorities, must go further than merely reporting. They must take positive steps to fulfil rights. There might be more scope to explore what that means in practice and to help them to meet that obligation.
Alexander, do you have any supplementary questions?
No. I am content with the information that has been given.
Alex Cole-Hamilton (Edinburgh Western) (LD)
Good morning. The UN Convention on the Rights of the Child is two things, principally. First, it is an international baseline that the United Nations sets as the standard for children’s rights. The UN says that it will accept nothing less than that, and it wants states to go further. Article 28, on child soldiers, is a good example of where the UK and Scotland do better than the UNCRC. We do not allow children to become soldiers below the age of 16, whereas the baseline is 15. However, we are behind on issues such as the age of criminal responsibility. The UNCRC wants that to be 14; we have set it at 12, but we have not implemented that.
Is it imperative for Scotland to get to the floor on all levels so that we can make a moral claim to have fully incorporated the UNCRC?
I am sorry, but I missed the tail end of the question. Could the member repeat it, please?
Do you think that there is a moral imperative for Scotland to get to the baseline level on all the articles and all the general comments, so that we can morally conclude that we have incorporated the UNCRC into Scots law?
The moral imperative is a policy matter rather than a legal one. There is a legal imperative. Whether it is enforceable in law is another matter, but the UK signed up to the treaty, so as an absolute minimum, it has a legal obligation to meet the standards that are set in the treaty, which are minimum standards. It is great if states can go beyond those. The treaty just sets a framework for the minimum standards, but it is a legal obligation.
The bill tries to facilitate an enforceable legal obligation. That would not exist without incorporation. Some parts of the treaty are redacted because of matters that are reserved rather than devolved. For example, the recruitment of soldiers is part of that redaction, if I remember correctly. In so far as it is possible to do so, everyone in Scotland who exercises public authority on behalf of Scottish bodies—whether that be the Parliament, the Government, public authorities or private authorities that perform public functions—should seek to comply with the standards, even where there has been redaction because competence has not been devolved.
I do not have a particular view on the issue. Katie Boyle is right to say that there are issues of divided competence.
I would also point out that the Parliament is not under any legal obligation, as a matter of domestic law, to implement the convention. The state is under an obligation, as a matter of international law, to comply with the convention.
I want to make two points in response to Alex Cole-Hamilton’s important question. First, the single greatest argument in favour of incorporating the UNCRC is that it turns an international obligation into a domestic legal obligation. That gives it more force. With an international obligation, even though international law is law, politics can get in the way. Governments and states can decide that international law does not apply to them, and there is no enforcement mechanism. The single greatest argument in favour of incorporating the UNCRC is that it turns a moral imperative into a legal imperative.
Secondly, Alex Cole-Hamilton mentioned, quite rightly, that the convention sets minimum standards. There is a provision in the convention—article 41; it is set out in the schedule to the bill—that permits states to go further. I have a suggestion to make, which is to enhance article 41 somewhere in the bill. That goes back to the point that I made some time ago, which is that I fear that parents and others will hijack children’s rights in order to limit children’s rights, for example by arguing that it is a child’s right not to hear people talk in a particular way and not to be exposed to literature that shows that a lesbian, gay, bisexual and transgender lifestyle is a legitimate lifestyle. Arguments such as those limit children’s rights, and we need something in the bill that protects us against that. Article 41 helps to some extent, but I do not think that it goes quite far enough.
I would like an equivalent to section 13 of the Human Rights Act 1998, because that says that courts must pay particular regard to the importance of article 9 of the European convention on human rights. I would like the bill to be amended to say that the courts should pay particular regard to the importance of article 41 of the UNCRC. That would bring it immediately to courts’ attention that article 41 is a minimum standard and ought not to be used in a way that deals with an adult agenda but limits the rights of children.
I agree that the strength of the bill, and the reason it should be supported, is that it is taking that state obligation and bringing it into Scots law. The parallel with the Human Rights Act 1998 makes it very important.
Another benefit of the bill is that, hopefully, it will generate conversations in Parliament, in the community and in schools—wherever you find children—about children’s rights. In doing that, it will raise the profile and the understanding of children’s rights. I come back to the idea that it is not enough to have this stuff in legislation and think that we are done. We need to make it work, so the practice needs to follow through, and the bill contains mechanisms to ensure that that happens. However, we also need to embed it in the community, so that people understand it. That goes back to the point that I made earlier.
On satisfying the minimum requirements of the convention, Scots law should be trying to achieve that, but frequently it should be trying to go further. In my answer to the first question that I was asked, I talked about examples of cases where we have gone further and how that is fine—these things are beneficial. I think that we should see what the convention is asking us to do—or telling the state to do—as a minimum threshold, and go beyond that, where that is possible and appropriate.
There is another part to that question, after which I will ask a quick follow-up question, if the convener will bring me back in.
I said that the UNCRC was two things. First, it is a baseline. Secondly, it is a living document. Alongside the articles that are enshrined in the convention are three other organic things: the optional protocols, the general comments and the concluding observations from the rapporteur when the rapporteur visits our country. Are the witnesses content that the bill is sufficient to allow Government to reflect on those three organic arms of the convention, such that it will make the UNCRC a living document in Scotland when we have incorporated it?
Do you want to direct that question to a particular witness?
Thank you. That is absolutely right. It is really important that Government and the courts and public bodies are directed to as many of the official documents and working papers as is possible. That is the only way that we can identify appropriate trends and gaps in the provisions and then bring them properly into force in a practical, meaningful sense in Scotland. I absolutely agree with that.
Aileen, would you like to come in on that question?
No, thank you.
Okay. If no one else wants to come in on that, I will move on to my final question—
I am sorry, Alex—Elaine Sutherland wishes to come in.
Yes, we want Government to look at all those things and to be as informed as possible on what the United Nations Committee on the Rights of the Child is telling us. The sad truth as far as optional protocol 3 is concerned is that the UK has not ratified it and does not look as though it is in any rush to do so, and there is nothing that we can do in Scotland to ratify it. It is a matter for the state party whether it ratifies an optional protocol.
For the benefit of any committee members who might not be clear on what it is, optional protocol 3 is about what is called in United Nations-speak a “communications procedure”; it is really about complaints about violations of the convention. We have not ratified it, and Scotland has no power to do so, so we are a bit hamstrung on that one.
Katie Boyle wishes to come in, too.
The question succinctly identifies a gap. That gap can be addressed by an amendment to section 4 of the bill, in so far as interpretation requires to be undertaken with regard to the UN treaties, treaty body decisions, optional protocols, general comments, recommendations and comparative law. I reiterate what I said earlier about the example from South Africa, where courts must have regard to international law and may have regard to comparative law. That is a useful example to draw on. Section 2 of the Human Rights Act 1998, under which the courts must have regard in interpretation to ECHR jurisprudence, is not dissimilar.
It is a question of ensuring that, when an interpretation is made, that is done in context. Otherwise, it will not work, and we will end up with a Scottish version of the UNCRC that is not necessarily interpreted in its context, which is international human rights law.
Thank you for those answers.
My final question is about commencement; it is one thing to pass an act but another to commence it. It is now nearly two years since we passed the Age of Criminal Responsibility (Scotland) Act 2019 in the Scottish Parliament and our age of criminal responsibility is still eight. We have not yet made it 12 and I am not clear why that is. Section 40, on commencement of the act, leaves it up to ministers to determine when it will come into force. First, are the witnesses content with that? Secondly, can they point to any barriers or impediments that would create an unnecessary delay in commencing the provisions of the act?10:00
Commencement is a policy decision, so I do not have a legal response to that question, other than to say that, ideally, it would be done without delay. Other countries, such as Sweden, have had a run-in period to allow those who will bear obligations under the incorporation act to have time to catch up. My concern is that there have been obligations to be aware of the duties under the UNCRC since 2014, so, ideally, you would commence without delay but, ultimately, that is a policy decision.
There are provisions on the statute books that have been languishing unimplemented for a lot longer than two years, so that is an issue at times.
The argument for a delay in commencement would be to allow public authorities to get up to speed with their obligations under the act. In all the big changes in public sector duties over the past 20 years, there has been a delay. There was a year or so for the Human Rights Act 1998, three years for the Scottish freedom of information legislation and five years for the UK freedom of information legislation. If we go back to the Equal Pay Act 1970, there was a five-year delay in its being implemented.
If you were concerned, the obvious thing to do would be to set a date by which particular provisions had to be brought into force, but it would be reasonable to give a fairly substantial period before implementation, to allow proper compliance with the legislation.
I would prefer a specific date, rather than it being left to ministerial discretion, because a specific date focuses people’s minds. A reasonable—and reasonably short—period after royal assent should be allowed.
Earlier, I mentioned that I did not like the discretion that was left to ministers. I understand that public authorities need to take on board what they have to do, but they have been aware of the convention since well before the legislation in 2014, so it is not coming to them out of the blue. There should perhaps be a period before implementation, but it should be very short. It should be specified in the act that implementation should take place within a certain period after royal assent, rather than it being left to the discretion of ministers.
Thank you. That draws our first evidence session to a close, and I thank Dr Boyle, Professor McHarg, Professor Norrie and Professor Sutherland. I appreciate your joining us so early this morning and your perseverance in the face of our technical difficulties. If there was anything that you wished to share but you did not get the opportunity to do so, please correspond with the committee. Likewise, we might follow matters up with you.
I suspend the meeting to allow us to set up for the second panel.10:04 Meeting suspended.
10:10 On resuming—
Welcome back, and good morning to our second panel of witnesses. They are: Morag Driscoll, from the child and family law sub-committee of the Law Society of Scotland; Janys Scott QC, from the Faculty of Advocates; Andy Sirel, from the Scottish refugee and migrant centre at JustRight Scotland and Professor Kay Tisdall who is a professor of childhood policy at University of Edinburgh. Thank you all for joining us this morning.
I will invite members to ask questions. If a question is directed to a specific witness, the member will identify that witness. Otherwise, we will work through the witnesses in the order in which they appear on the agenda. We need to conclude this session no later than 11:45, so it would be helpful if we could try to keep questions and answers succinct. There is no need to adjust your microphone or camera—broadcasting colleagues will do all that.
There is strong support for direct incorporation of the UNCRC into Scots law. What are witnesses’ views on the approach that the Scottish Government has taken? I am particularly interested to hear what you feel the benefits are and whether you think that there are any disadvantages to that approach.
Morag Driscoll (Law Society of Scotland)
Thank you very much for inviting me today. The law society is very much in support of the bill and—[Inaudible.]—more accessible and better recognised in Scotland.
Can you hear me?
You are coming through, but it is crackling a little bit. If that continues, I will ask broadcasting to cut your video so that we can hear you clearly.
All I had to say was that the law society welcomes the bill.
Do you see any disadvantages to the approach that is being taken?
I listened to the earlier part of the meeting, and, to use Elaine Sutherland’s words, I endorse the comments that were made during that session.
I do not feel that I can answer the question in great detail at this stage, so I will pop it on to Janys.
Janys Scott QC (Faculty of Advocates)
I welcome the opportunity to give evidence on the bill on behalf of the faculty. The faculty very much respects the rights of the Parliament to set its policy on incorporation of the UNCRC.
In response to the question about benefits or disadvantages, I would frame them as “challenges”, because practitioners are being set the challenge of dealing with translating an aspirational convention into rights in individual cases.
It is helpful that the Parliament has chosen to follow an established path by referring to the Human Rights Act 1998. An example of that, which has not been mentioned by my academic colleagues, is that section 19 of the bill adopts the model from the human rights act. Section 19 says:
“So far as it is possible to do so ... legislation”
is to be
“read and given effect in a way which is compatible with the UNCRC requirements”.
That will enable us to face the challenge that the Parliament has posed us by, if appropriate, reading down the legislation. That is a very powerful thing to put in the hands of the courts, because it means that at court we can take a red pen to or read in passages of legislation that will enable the UNCRC requirements to be better met.10:15
Andy Sirel (JustRight Scotland)
Thank you, convener and committee members for inviting me. JustRight Scotland welcomes what is an extremely strong bill, notwithstanding the recommendations in our written evidence, which we will make again today.
We are in favour of the broad, maximalist approach. In particular, we appreciate the bill’s distinct proactive and reactive elements. The upstream measures—the children’s rights scheme and the child’s rights and wellbeing impact assessment—are really important, because we hope that they will help to obtain compliance at an initial stage of policy making and law making and help to iron things out before they come into force.
As a litigator who represents children, I do not want to go to court for children; we avoid that at all costs, so while it is great to have that upstream dynamic, we need the downstream reactive measures. We need enforceability, and the bill is strong on that. It uses language that is familiar to us as human rights practitioners, and it uses remedies that we have used before, albeit in slightly different ways. It would create positive changes to some existing processes, with regard to issues around standing and time limits, which I would like to speak about later. It would change things dramatically. It would allow me, for example, to go to court and say to a judge, “This is a violation of the UNCRC.” At the moment, the judge would say, “That is all very well, thank you, Mr Sirel, but I can’t do anything about that.” After the bill is passed, the judge would be able to act—that is it in a nutshell. We welcome the bill.
Professor Kay Tisdall (University of Edinburgh)
I want to check that you can hear me.
Yes, we can hear you.
As you will have seen in our evidence, we think that it is absolutely wonderful to have the bill and we only want it to be strengthened through the legislative process. To give an example of that, as the Observatory of Children’s Human Rights Scotland, we were recently commissioned by the children’s commissioner to do the CRIA that was submitted to the committee, as you know. That underlines the fact that taking a children’s rights approach makes better policy and, we hope, better practice. From carrying out the independent CRIA, it became apparent that, in times of crisis, there are issues that are not paid sufficient attention, from schools being open to provisions for children affected by domestic abuse. That CRIA experience and focus on children’s rights drew our attention to that, leading us to make the real differences that are really important to children.
I will bring in Mary Fee.
Thank you, convener. I want to explore two areas with the witnesses, the first of which relates to section 4 and the interpretation of the UNCRC requirements. Do witnesses think that the interpretation should be expanded to take account of general comments or concluding observations? If so, might there be any unintended consequences of doing that?
Secondly, on public authorities, witnesses who listened to the previous evidence session will know that I asked those witnesses whether the definition of “public authority” should be expanded to take into account every organisation that has contact with a child, whether it is a private organisation, a third sector organisation or the children’s hearings system. I am particularly keen to hear the Faculty of Advocates’ view on children’s hearings, because it was the faculty’s evidence that queried whether the children’s hearings system would be included.
Finally, I would be grateful for the witnesses’ view on what a public authority should do if faced with secondary legislation that is incompatible with the requirements under the UNCRC.
Mary Fee mentioned the Faculty of Advocates, so we will go to Janys Scott first.
I will deal first with general comments. Those are helpful as interpretive instruments; it is useful for a court to have all the assistance that it can get in interpreting a particular piece of legislation, as long as that element is not determinative. It would be difficult if that were the case—one would not want to have an external body dictate to Scottish bodies what they should do. Helpful, yes—determinative, no. General comments should be taken into account, by all means, but within the domestic context.
With regard to the definition of “public authority”, Kenneth Norrie was right to say that a children’s hearing is a public authority. I am trying to find whereabouts in its submission the Faculty of Advocates mentions tribunals—I do not think that it was quite in that context. I will come back to that in writing, if I may, but I do not think that the faculty mentioned tribunals in that context specifically.
One of the points that arose in the academic discussion was what to do about private organisations exercising public functions on behalf of public authorities. It is important to clarify that, if a private organisation is exercising a public function, it is to be treated as a public authority. That is vital to the operation of the bill.
I hope that that covers all the points.
We will go to the other witnesses, starting with Morag Driscoll, for comments in response to Mary Fee’s questions.
I fully agree with Janys Scott. As Elaine Sutherland said earlier, the more tools that we have, the better. Again, general comments should not be determinative, but they should be available to the court to assist its understanding of the meaning of the UNCRC, which is, of course, a flexible document. If general comments come out, we would be ignoring a valuable resource if we did not include them in consideration.
I agree in respect of private organisations that carry out functions. The best illustration of that would be services that provide advocacy for children in children’s hearings. If they are carrying out what is, in effect, a public function, they should be obliged, as public organisations are—[Inaudible.]
We would be ignoring the people who are at the coalface—[Inaudible.]
With regard to section 4, which is “Interpretation of the UNCRC requirements”, I agree with Morag Driscoll and Janys Scott. That point speaks to a question that Alex Cole-Hamilton asked of the previous witnesses. He talked about the convention as a living instrument, which means that the scope of the rights develops gradually as time goes by, in alignment with societal attitudes. That is a well-known autonomous concept in international human rights law; it is applied in the context of the European Court of Human Rights.
The policy memorandum to the bill, at paragraph 144, highlights the need to emphasise
“on the face of the Bill that the rights ... remain within their context”,
and states that those rights must be looked at in the context of
“the whole UNCRC and optional protocols”.
The context is not just local.
In the context of the European convention on human rights and the Human Rights Act 1998, our courts are required, under section 2 of the 1998 act, to take account of judgments from the Strasbourg court: the European Court of Human Rights. Those cases—whether they are against the UK, Hungary or Azerbaijan—are not determinative, but they must be taken into account.
We do not have an equivalent in the bill, and we do not really have an equivalent of the European Court of Human Rights in the context of the UNCRC. What we do have are concluding observations, general comments and other interpretative sources. That is why those elements are important and should be included in the bill, because that would allow our courts to look to such things to see a modern manifestation of what the rights look like now and apply that to the Scottish context. I agree with Janys Scott that those elements should not be determinative, but should be a source of inspiration.
With respect to section 6, on public authorities, I have sympathy with the drafters of the bill. I appreciate the intention behind keeping the wording as broad as possible, and I agree with what the policy memorandum says about the intention, but I worry about how the provisions will work in practice.
There were references in the policy memorandum to a long history of litigation around what a public authority is. That long history has not left us in a settled—[Inaudible.] Just last year, the inner house and the outer house of the Court of Session were in complete disagreement on the fundamental test that should be applied. They had differences of interpretation on the test. If we still have Scottish courts disagreeing with each other on the same set of facts after 20 years of litigation, that is problematic.
It might be helpful for the committee to look to other sources of inspiration. In its written submission, the Scottish Human Rights Commission give a very detailed assessment of the issue, and JustRight Scotland did the same in our submission. Down south, the Joint Committee on Human Rights has looked at the issue twice and has suggested wording. I like the wording that refers to a contract or other arrangement with a public authority that is under a duty to perform the function.
The problem is that, if we do not have something more specific and we take a slightly inconsistent or unclear approach in the courts, that will leave us with a lack of certainty about who is under the duties and when. That is not a very good place to be. We want local authorities to be certain about what they are doing in relation to their corporate procurement, we want private parties to be certain about their obligations when they enter into a procurement exercise with a local authority, and we want children, young people and families to understand when, and in what circumstances, they are able to access their rights.
In the children’s sphere in Scotland, there are private foster care placements, private care homes, social work functions and aftercare functions that are completely outsourced to charities. There are mixed models. Leaving it to judicial interpretation has not got us into a very good place, so additional wording in the bill on the issue might be useful.
I will address the first two parts of the question. As the committee will know from our evidence, we advise that courts should have a duty to have due regard to the general comments, the concluding observations and the decisions under the third optional protocol.
For example, we recently made suggestions about the bill that became the Children (Scotland) Act 2020 in relation to family law. It was incredibly useful to the discussions to consider the general comment on article 12, in order to realise that there should not be a threshold that has to be met in relation to a child’s capacity before their views are considered. That shows the value of considering such comments, and it seems that the courts having a duty to have due regard to them would be an appropriate balance. As you know, we think that that duty should also be applied in relation to the children’s rights scheme and the children’s rights and wellbeing impact assessments.
The public authority issue seems to be very serious, as Andy Sirel has documented. It is really important that there are firm provisions on that in the bill. It is clear that a lot of children’s lives are affected by private organisations that arguably carry out public functions, including the provision of child care, housing and residential care. That is a key issue on which we need to follow the Scottish Government’s intention, in order to ensure that the bill is clear.
Mary, do you have any follow-up questions, or are you content with those answers?
I am content. I am very grateful for the comments on the definition of a public authority. We will take much more evidence on that and give it careful consideration.
Thank you. With Fulton MacGregor’s permission, I will bring in Gillian Martin before him, as she is unable to stay for the whole session.10:30
I am grateful that you are able to bring me in early, convener.
Section 7 says that an individual or organisation may raise court proceedings in respect of an alleged breach of the duty of public authorities. The bill also specifically empowers the children’s commissioner to raise such proceedings. For judicial review actions, the Government’s policy intention is that any individual or organisation would require to demonstrate sufficient interest to be able to bring such proceedings. How do the witnesses interpret that? Is it clear enough what sufficient interest is, and are you happy with the overall approach, including how the Government’s policy intention is given effect to in sections 7 and 10?
Supplementary to that, I ask about timing. Submissions to the committee have had mixed views on whether it is correct to exclude the period when a young person is under 18 when calculating the time limits for raising court proceedings under section 7. What are the witnesses’ opinions of when it should be possible to initiate court proceedings?
This is complex stuff, as we heard in the earlier part of the meeting. It would be unfair to treat a child in the same way as an adult when it comes to time limits. There are also concerns about the potential of somebody waiting 10 or 15 years to bring a proceeding, but that is likely inevitable. However, I would suggest that it is entirely appropriate to keep the time limit for children. There are some practical issues with the operation of section 7 because of the potential for delay. When it comes to early action by children, six months in the life of a child is like three years for an adult, so delay must be avoided. However, the remedy in the bill must be retained. It is, of course, discretionary—it is decided case by case—and it is important that courts retain that discretion.
On the first question, the children’s commissioner is the logical person to initiate such proceedings, but I agree with what was said in the earlier session about the potential for class action. We do not want the problem of adults using the legislation to export issues that are really for adults. However, there will be times when a problem becomes apparent, and perhaps a charity that deals with that area would wish to raise a proceeding on behalf of children who are affected by that problem or children throughout Scotland.
Then again, in many ways it is a matter for the courts to say whether that is acceptable. Perhaps there could be provision for discretion, or some guidance. I would rather leave that aspect to Janys Scott, who would be the sort of person doing it.
The provision relating to the Children and Young People’s Commissioner Scotland is most welcome. When I was giving an opinion on the equal treatment issue, I was conscious that the commissioner in Northern Ireland had tried to challenge a similar deficit in Northern Ireland law and had been knocked back on the ground of lack of interest. It was an appalling prospect that one had to wait for a child victim before one could challenge something that was deficient in terms of children’s rights. Allowing the children’s commissioner to be proactive on that point will be hugely important for the implementation of the bill and the recognition of children’s rights in Scotland.
On the question of sufficient interest, the courts, as you can appreciate, interpret that very broadly. It is a question of striking a balance so that we do not admit busy-body actions, where somebody who does not have a direct interest raises proceedings, but we allow somebody who has an interest to intervene in proceedings and assist the court in reaching a decision. That is a balance to be struck in relation to instigation and intervention.
On the timing issue, the problem is that one has to look at what remedy one is asking for. If one is asking for a judicial review remedy, one is saying that a decision has been reached by a public authority that is unlawful and that, therefore, it requires to be addressed or struck down—an order requires to be given to say, “Don’t do this,” or, “Please do that.” If you are looking to address an unlawful decision, it is no good waiting 10 years, because we want that to be done there and then, and if you wait 10 years, it is going to be entirely academic because the whole point will be lost. It will be lost for the child and it will be lost for the public authority. It will not be conducive to good administration or the proper recognition of children’s rights to bring up a stale case 10 years later when the whole point is gone. Therefore, if it is a judicial review remedy, there is not much point, frankly, in saying that the child can bring it up, or it can be brought up on behalf of the child, 10 or 15 years later.
Damages are a different issue, because you might want to say that, 10 years ago, a child suffered a wrong, which has not been properly recognised, and that we can now recognise that in damages. I can see that argument. On the other hand, the judgment in the case of A v Essex County Council in the Supreme Court reasoned that it would not allow the case to be brought up after the end of the year’s time limit because the amount involved was going to be quite small and it would be disproportionate to require a public authority to go back, potentially many years later, to consider the damages question.
Therefore, on judicial review, the answer is pretty clear that matters ought to be dealt with quickly and that there is no point extending the time limit. On damages, there is a proportionality issue to be addressed, and you might want to look at that with regard to permitting the court to hear a late claim if it is considered appropriate. However, leaving it open in that way will potentially cause more problems than it will address.
Andy Sirel, I will come to you now on Gillian Martin’s points about who can bring court proceedings and the time limits.
On the first question about sufficient interest, I like that part of the bill. I like the fact that the victim test, which we find in the Human Rights Act 1998, has not been included. It is a significant widening of access to justice. I hear what you are saying about what “sufficient interest” means. As a lawyer, I am not particularly vexed by that issue at the moment because, as was said by Janys Scott and, I think, Aileen McHarg on the previous witness panel, the courts, through AXA General Insurance Limited and others v the Lord Advocate and others and Walton v the Scottish ministers, have interpreted “sufficient interest” pretty widely, to be honest. As a lawyer, I feel that we have a good sense of what it means in practice. However, I have a slight concern about the broader on-going UK-wide discussion, emanating from the UK Government, about looking at judicial review and standing and who can take cases. I have a slight concern about the direction in which that is going, which might look to narrow the definition of “sufficient interest”, and that could play out further in the courts. I am not sure what we can do about that. Perhaps a means of moving it forward in the bill would be to include the words “sufficient interest”. That might be helpful but, again, if the scope narrows in the courts, that does not take us much further. Therefore, I have a slight concern about that but, as it stands, sufficient interest is good.
It is a significant move forward that a child does not need—[Inaudible.] I will give a quick example: I am working with an asylum-seeking young person, who was dispersed this summer into adult accommodation in a hotel in Glasgow this summer that was in terrible condition. My colleagues and I were looking at the prospect of bringing a case to challenge the action of holding asylum seekers, never mind young people, in hotel accommodation with no money. My client was undergoing numerous types of legal process at the time—the age assessment, the asylum process and so on—and he was very unwell and suffering trauma. He was not really in a place to even have the capacity to instruct me to take another case challenging his accommodation. If we did not have the victim test, my organisation or another organisation would perhaps be able to take that case on his behalf. That is the difference; it is substantial.
With respect to the time limits, I note—with great trepidation—that I will probably depart from Janys Scott’s view; I do not often do that, but I have to do so here. There are two broad reasons why I am in agreement with what is in the bill in respect of section 7 on time limits, the first of which Professor Norrie flagged during the earlier panel. It takes into account the evolving capacity and maturity of children and young people as they get older, allowing them to have a say on acts that were done to them when they were too young to take any action themselves. The fundamental aspect—[Inaudible.] That is the first, very basic point.
The second point speaks to the balance of power, which we need to bear in mind and remember. The balance of power most definitely favours public authorities or providers and not the child. There is, of course, a requirement for a level of certainty in order to facilitate good governance. I believe that the bill does not place an onerous burden on public authorities, especially when considered next to the onerous burden that is placed on children to meet strict time limits.
I cannot recall who, but someone on the previous panel described the legal justice system in this country as designed for adults by adults. That is true. I will give the committee a practical example from our own recent experience, which I am afraid is not unique; I could regale the committee with examples all day. This example concerns a child who, having escaped a cannabis cultivation situation, is living in adult accommodation. They were age assessed by local authorities as being over the age of 18 and the assessment outcome was communicated to them verbally through an interpreter. The person therefore knew the outcome of the assessment but did not quite grasp the reasoning, and they were not provided with a written report for another four weeks.
That young person has no experience of living in Scotland, no money, no English language, no education, no social worker, limited practical support and serious trauma. They were at continued risk of retrafficking. When they were eventually referred to my service and we attempted to challenge the assessment in question, the local authority fought hard to knock the case out on the basis of its having been submitted outwith the three-month time limit, in its interpretation of the time limit. The court applied the law and noted that the time started running from the date that he was told of the decision orally and not from the date that it was written to him. That is an application of the law. In the specific facts of the case, it extended the time limit.
There are key things to take away from that. Children and young people are at an inherent disadvantage. Very often, the support that they receive is from the corporate parent against whom they would be taking a case. Many children are looked after and guided by that corporate parent. They may be unaware of their ability to take a case or fearful of doing so. They therefore need an independent third party to help them access that—[Inaudible.] Then there is the bureaucracy: we need to instruct a lawyer, qualify for and obtain legal aid and engage an advocate. The real burden therefore lies with the child and not the public authority.
The second point from my example is that public authorities will use every tool in their legal arsenal to defend a litigation. It is right that they are able to do so and it is right that their advocates—whether that is Janys Scott or anybody else—and legal team advise them as such; that is fair and proper. If the tool is in the shed, they will use it, regardless of the age of the child. There should not be any uncertainty about that.
The current law on time limits in Scotland is robust. Janys Scott’s example from the Supreme Court is one example of that. The outer house held this year that time limits run from when a decision is made and not even from when a person knows about it. As they are, those time limits and strict procedures represent at present a barrier to children taking cases.
Other hurdles need to be cleared to bring a claim for judicial review. In evidence that I have read, there are examples of cases being taken 15 years later. To bring a judicial review, the young person needs to prove merit and, if a case is stale, that could be taken into account by a judge at the permission stage.10:45
The committee has two options: leave it the way it is or, if you are not minded to do that, make the discretion to extend far wider and more explicit to take into account children’s specific circumstances.
I am sorry for my long answer.
It was very helpful. It aids the committee to have specific examples of what the issues mean in real life and to young people, so that we do not talk about it in the abstract all the time.
Professor Tisdall, is there anything that you wish to share with the committee on Gillian Martin’s questions on court proceedings and time limits?
I have had the benefit of listening to today’s evidence sessions, and I endorse the discussion about sufficient interest and ensuring that the intention on that is clear in the bill.
On time limits, I am persuaded by Andy Sirel’s presentation. We know from the research evidence that many children do not realise until they are older that their rights have been breached, which is important for the Government’s intention in regard to time limits. I will pick a second example of that, which is of power imbalance. We have heard from looked-after children that they might find it difficult to take an action against their corporate parent until they are older. That is another example of why we need to take account of children’s perspectives.
I will continue with questions on the accessibility of courts and tribunals to children and young people, which I asked the earlier panel of witnesses and which follow on nicely from the exchanges that we have just heard. Are the existing services accessible? If not, what improvements are required? We heard a lot of good evidence on that during the previous evidence session. Can the witnesses think of specific ways in which the Scottish Courts and Tribunals Service could be made better? For example, in the criminal justice world, there is a lot of talk about the barnahus model. Should we be considering that to enable children to access their rights?
It is always difficult. Law, by its nature, tends to be complex, and the interpretation of statute is not particularly child friendly. Some improvements have been brought in through the Children (Scotland) Act 2020, which gives children more choice about how they express a view.
We have to remember that there are different sorts of rights. Children may have passive rights such as their right to be educated. We have a duty to ensure that they are educated, but the child does not have to take any active steps in that regard, as it is up to the grown-ups to do it. Amnesty writes that the child needs to take a step to give their view, to ask to be excused from a hearing or to make the complaint in the first place.
We are asking children to participate in what is a complex and adult forum. We have made improvements, but we are not there yet. The children and young people who have come forward to the committee are not the majority, unfortunately. Many children, especially those who live with trauma or who have certain types of disability, are less likely to be aware that something has gone wrong or that they had a right to something, and they are less likely to understand their rights or the context. Their position is also very much dependent on the services that we provide. Only now—nine years after the 2011 act came into force—are we providing advocacy services for hearings.
The situation is difficult, and we need more understanding among those who provide services for adults that we need to observe children’s rights. I will give an example. As well as a right to attend children’s hearings, children have a duty to do so, from which they can be excused under certain circumstances. However, in my experience, it is not at all uncommon for children to have been excused without having been asked whether they wanted to go. Or they might have been excused and have said, “But I wanted to go,” and an overprotective adult has told them, “No. You have been excused—you are not going.” It is therefore not just a matter of giving a child a right; we must have people who are able to make that right real and enable the child to take the steps that they need to take. That is why we need such duties to be made clear in the children’s rights scheme, which is the aspect that we will consider next.
However, we also want to prevent problems before they get to court. Earlier in the session, someone talked about the need for a child-friendly complaints system. In our response to the committee’s call for views, we asked whether we should have a child-compatible way of doing that instead of adapting for children courts that have been designed for adults, or the other way round. Which way should we go? Too often, we try to put on such problems a bandage with a teddy bear on it, rather than ask what children actually need to enable them to exercise their rights. Also, they might already be dealing with difficult and complex situations. What should we do in the case of a child who temporarily loses capacity due to trauma?
The situation is very complex, but the bill will be a big help. I am so glad that it grants the Children and Young People’s Commissioner Scotland the powers that we have discussed. However, when we talk about accessibility, I sometimes wonder whether we are coming at it from the wrong angle. We should look at what children need and how we can adapt the system to the child rather than create ways for a child to adapt to the adult system.
I am sorry to have gone on about that—it is a bit of a hobby horse of mine.
No—that was really useful.
I should declare an interest, because my primary area of practice is family law. Over the years in which I have been in practice, I have seen a culture change, which I think we need and which is being encouraged through the bill. We have seen courts being more willing to hear from children and to have them as parties to proceedings. In recent years, I have also represented more children.
However, it is fair to say that the position across Scotland is quite patchy, as will always be the case in a cultural context. One thing that will help that hugely is the empowerment of the Children and Young People’s Commissioner Scotland, who will have a big role in assisting children if they wish to participate. The bill is therefore a step in the right direction.
I would like to go back to Mary Fee’s question. I have discovered where the question about tribunals came from. It is based on section 9 of the bill, and it concerns whether a children’s hearing is exempt from awarding damages or whether it counts as a tribunal and therefore cannot be asked to award them. It might be worth clarifying that.
Does Andy Sirel have anything to add in response to Fulton MacGregor’s question?
I have a couple of short points to make. I endorse what Morag Driscoll and Janys Scott have said. In particular, I agree about the existence of culture change, which I, too, have seen.
More than ever, we are able to ask questions and to use existing court rules in order to make courts child friendly. Whether that is the right approach and the right lens through which to view things is a different matter, though.
Morag Driscoll asked whether we should adapt for children courts that have been designed for adults or whether we should create something else for children. However, I am not particularly qualified to offer a view on that.
On the bill, and in this evidence session, there is a distinction between incorporation and implementation—between what should be in the bill, in order to make existing remedies more accessible, and what comes after the bill. Measures in the bill, including the time limit, the beefing up of remedies, the provisions on strikedown and making declarations of incompatibility more robust, improve the quality of the remedy.
Declarations of incompatibility, as they are defined in the Human Rights Act 1998, are not compliant with the right to an effective remedy under the European convention on human rights, as is shown, for example, in Burden v United Kingdom, from 2006. The additional requirement for ministers to report on a declaration of incompatibility is a positive step. It means that there is an imperative for something to be done. I think that the bill could perhaps go even further and say that they should do it.
We have learned hard lessons in Scotland on declarations of incompatibility. For example, a declaration of incompatibility was set down in 2007 in Smith v Scott, which was to do with prisoner voting, which reconfirmed that the decision in the Hirst v United Kingdom (No 2) case should be implemented. That was not done until this year—there was a 13-year delay on the back of a declaration of incompatibility. The bill goes some way towards making sure that that will not happen for children’s rights.
The question on courts and tribunals—[Inaudible.]—feels like more of an implementation issue about whether we adapt what we have or create something new. That is a big piece of work on which I am not particularly qualified to offer any more insight.
The issue that has been raised is an important area. One of the big benefits of a children’s rights approach is in accountability and in the importance of having just, effective and appropriate redress and remedy. From our evidence from children and young people, we know that, largely, we are not very accessible. There are good examples that we can learn from. We know that the additional support needs tribunal is working extremely hard in that regard, and I think there is a lot of learning to be had from that.
However, I agree with Andy Sirel about the need to take a bit of a step back. On 27 November, we will be able to give our conclusions to the committee. We are having a seminar with the Children and Young People’s Commissioner Scotland on the Children (Scotland) Act 2020, bringing in the children’s views, to address that very issue about what redress means in that context. As has been discussed, we need to think about the package. At the very least, the baseline is that cultural change in understanding.
An increasing amount of advocacy is available for children, and we know that the Scottish Government wants to join it up. The bill is an opportunity to do so. The issue of having a child-friendly complaints system has been mentioned, but that is quite radical. In our research for the Children’s Commissioner for England, even the idea of a child understanding and wanting to make a complaint was actually quite a big hurdle—[Inaudible.] Can we think of complaints as positive things rather than as something that a public authority, for example, might not want to hear?
Access to justice is also a big issue. You will know that we are critical of the legal aid changes, which have sometimes prevented children from accessing legal aid. It should be a requirement to address that whole area as part of the children’s rights theme—through the bill, we suggest—to make sure that that cornerstone of the children’s rights approach is really, and regularly, considered.
Thank you. I know that Alexander Stewart has some questions about that, but I will first bring in Andy Sirel, who has indicated that he wishes to make a point.11:00
I have a brief point to make off the back of what Kay said about legal aid, which is mainly for the record. I saw, from the written evidence that was submitted by the Scottish Legal Aid Board and other parties, that legal aid is under review by ministers, and I want to flag that the committee should consider whether there should be something in the bill that relates to free access to legal advice or other legal instruments, such as there is in the South African directive.
We have a problem in Scotland around eligibility criteria as they apply to children. First, there is the duty of—[Inaudible.]—which takes into account parental or other guardian resources, and, secondly, there are the limits themselves. I work with care-experienced people, and many of them receive the care-experienced bursary, but a part-time job makes them ineligible for legal aid. For most of the young people I work with who are in their late teens or early 20s, if they work at Nando’s or Marks and Spencer and they receive the care-experienced bursary, they do not qualify for legal aid and we need to work for them pro bono. That is a serious access—[Inaudible.]
I have a brief follow-up question on an issue relating to part 2 of the bill that witnesses have already touched on. Do you think that it goes far enough to ensure that judicial remedies that can be provided by courts and tribunals will be effective in practice for children and young people?
Convener, I am aware that some colleagues require to leave to get into Edinburgh, so I am quite happy, with your permission, to address my question to Morag Driscoll and Janys Scott QC, although anybody else can come in.
If other panel members wish to add anything, they can request to do so in the chat box.
That is not a simple question. It is a big improvement. The points that were made earlier about who the duties fall on and that it should not only be Scottish ministers but the Parliament are important. I go back to the question about who can raise the action, which is apart from the question of access to justice. It goes back to that question, but I do not have anything to add to what the practitioners said earlier. It is another issue to go to Janys Scott on.
Part 2 of the bill allows all the tools in our current toolbox to be used on behalf of children. Unless you are going to go further and invent more tools, it is as effective as you can make it in the context of the current bill. I take Andy Sirel’s point about legal aid, which certainly needs to be looked at to make sure that the bill will be effective for children. However, so far, so good.
I will ask similar questions to those that I asked the first panel. I will start with the recognition that the UNCRC is a baseline—it is not best practice; it is what the international community regards as the bare minimum. Can we, in all conscience, incorporate the UNCRC while, for example, the age of criminal responsibility is still below the international baseline that the committee has set, albeit through a general comment? Is there a moral imperative for us to scan across all the articles to make sure that we are at the threshold, if not above it, before we can legitimately claim to have incorporated that important convention?
Of course, the law society does not comment on moral attitudes. However, we did argue at the time that the age of criminal responsibility should have been raised to 14. Personally, I would like to see Scotland take a lead on these things, but it is much more a matter for Parliament to decide and the Law Society to recommend on. One needs to be careful.
The UNCRC contains a huge and aspirational set of articles, and—as was mentioned earlier—the convention is a living instrument. Therefore, the way that it is read and interpreted will develop over time. It is important that we do not see this as a static matter but that we look at it as one that requires constant review. Huge areas of law would have to be considered, not only the age of criminal responsibility. I could run off a few examples of litigation from the past month.
If children are deprived of their liberty because they stay in children’s homes that are not approved for that purpose, does that comply with article 3(3)? Does our childhood mental health service comply with what is required by articles 24 and 27, or do we have a big issue there? The Children and Young People’s Commissioner Scotland’s “No Safe Place” report discusses whether we are using restraint and seclusion inappropriately on children with additional support needs in Scottish schools, which relates to article 37. Are educational rights a right? What about adequate standards of living? Do we consider top-up benefits?
The area is absolutely huge, so a challenge has been set. Okay, the UNCRC contains the minimal standards, but it has to be appreciated that the issue is quite large. That is why the faculty said, “Hang on a minute—have you actually costed this out?” I do not want to discourage you—children’s rights are important—but, if the bill is to have teeth, there is a lot of work to be done and quite a lot of money to be spent. Sorry.
My answer will be relatively short. The bill allows us to pull ourselves up by our bootstraps. If aspects of children’s law in Scotland do not meet the minimum standards, the bill will make that happen.
How that happens is up to us. It is going to happen through the effective—[Inaudible.]—scheme and the impact assessments and the reporting duties. Time and space—but not too much time—and money, as Janys Scott said, will be required to bring us into compliance. Alternatively, it will happen through litigation when there are serious faults and we are below that floor. It will happen more quickly through the latter than through the former.
I do not want to put the fear into anybody. I do not think that there is a pack of opportunistic lawyers at the door who are baying for blood—that is not the case. As I said, as practitioners who work directly with children, we do not want to go directly to court. Rather than think about whether we should do this, because we might not yet meet all the requirements, we should see doing it as an opportunity to allow us to be compliant in the long run. Nevertheless, I agree with Janys Scott that it is a not insubstantial task.
I would encourage members to read COSLA’s written submission, as well as the submissions from other local authorities, because those are a good litmus test of how they view the task. Their view is that they are already doing this and that, if something is needed, it is a little bit more time. However, it is not an impossible task.
I am encouraged that there is political will and will on the ground. Nothing is impossible.
I think that it is a moral imperative. We must incorporate the UNCRC, and the bill is an excellent start to that.
The committee might know that UNICEF commissioned research that looked at incorporation of the UNCRC in 12 countries. That work was done by our colleagues Laura Lundy and Ursula Kilkelly, and, as members might know, it found that incorporation did not substantially increase litigation. It was particularly helpful for changing culture and practice, and our discussion today has emphasised that that is what we want to do. Therefore, we have evidence to suggest that, if we invest in doing that, although litigation has to be a possibility, it is not necessarily tied to incorporation.
Thank you. The reflection that I offer in response to Andy Sirel is that the articles of the convention are silent on the minimum age of criminal responsibility. We set it through the general comments and, under the terms of our incorporation, those general comments would not be justiciable. Therefore, I take issue with the suggestion that it will automatically happen as a result of litigation; we need to push that ourselves.
The convention is a living document that is shaped by the interpretation of optional protocols, general comments and concluding observations of UN rapporteurs. Are the witnesses content that the bill has a sufficient feedback loop built in, so that the Government is compelled to respond and adapt, based on the general comments, concluding observations and optional protocols?
The witnesses have reflected on that somewhat in response to Mary Fee’s questioning, but if they wish to add anything, we would be happy to hear that.
That is all right; I will move on to my final question, which is on commencement. We have already touched on it lightly, with the previous panel of witnesses. An act is meaningful only when it comes into being and, at this time, there is no date for that, nor is there a date for commencement of the Age of Criminal Responsibility (Scotland) Act 2019. Can you tell us why it should be delayed? How quickly could we bring it in? Should we specify a date in the bill?
A big piece of work will have to be done and there will be a lot of work in the background. Local authorities and other public bodies will have a lot of work to do and will be waiting for guidance, which will have to emanate from—[Inaudible.] I cannot see the act coming into force by Christmas but, if a date were to be included, it would have to be realistic. I agree with comments that were made earlier about a date being useful as long as it is realistic, but I also agree with the comments about bringing in the scheme. When will the first reports be due? When will we hear about that?
It is also important when doing something new with children to review it in order to see whether it is working or needs to be adapted. I would like the bill to say that the first review of the new changes must be done within a certain period. In doing something new with kids, especially in relation to a living document such as the UNCRC, you need to ask whether we are still complying, whether there have been changes and what we need to do now. I would build that into the bill. There should also be a realistic date for commencement; I would not like to see another nine years go by.
Imagine sitting down with a child and telling them that they have rights under the UNCRC, but that we are sorry, because although it would be lovely to ask the court to force the public authority to do what the UNCRC says, incorporation has not happened yet and we do not know when it will happen. If we raise the expectations of children and young people with the bill, we owe it to them to say when incorporation will happen. I accept the point that there has to be a realistic timetable so that there can be preparation, but it would be a great disappointment not to set that timetable through the act being brought into force as soon as we can legally do so.
I agree with Morag Driscoll and Janys Scott. In the previous evidence session, Professor Norrie said that a date focuses minds. I am thankful that it is not my job to provide that date. I appreciate that there are considerations to balance, but a date certainly focuses minds. I do not want to be the person who delivers the bad news to a young client about the act coming in but not being enforced until they are 21 years old. That would be pretty unpleasant.11:15
The final point that I will make about the date is that leaving it up to ministerial discretion could punt the issue into the long grass. I always worry about future proofing. We live in a very strange world. If we were to transport ourselves six years into the future and Scotland happened to be governed by a rights-sceptical party or group of persons who were not interested in the matter at all, and if the date had been left to ministerial discretion, the provisions might never come into force. We cannot be complacent. After consultation of your colleagues in local government, I would like the bill to include a realistic date. We do not want to rush things and come out with bad procedures; we want to get this right. However, we also want incorporation to be prompt.
I agree. There needs to be a commencement date in the bill.
To pick up on Morag Driscoll’s point, I say that I think that reviewing and monitoring implementation is key. The children’s rights scheme is perhaps the key place to do that. We have lots of statistics, but they are not answering our children’s rights questions, so there is an urgent need to think systematically about how we do that. That would be a big step forward.
I will stick to similar questions that I asked the witnesses in the previous session, about the children’s rights scheme and children’s rights and wellbeing impact assessments. The witnesses in this session have already touched on those issues. The previous witnesses identified that there are gaps, that there are opportunities to develop the scheme and the assessments, and that the language in the bill could be stronger. It would be good to know whether you believe that to be the case. Should anything be added or changed in the content of the scheme?
As we have already discussed today, the Scottish ministers would have discretion in relation to the children’s rights and wellbeing impact assessments. Again, it would be good to hear your views on whether the Scottish ministers should have discretion in strategic decisions. How would that impact on the processes that have been identified throughout our evidence?
Kay Tisdall mentioned the children’s rights scheme in her previous answer, so we will go to her first.
That is a change, but that is fine.
I believe that the committee knows that a scheme in Wales has proved to be very successful overall; we can learn from that. Such schemes can be very effective, so paying attention to the scheme in Wales makes a great deal of sense. I have slipped in those comments in case we ran out of time.
Overall, the scheme should be strengthened. Section 11(3) should include things that are required to be in the scheme—for example, a phrase about promoting understanding. I am not sure why the wording of the Children and Young People (Scotland) Act 2014, which will be repealed, has not been included, because it has been argued that that wording is stronger and is about understanding. That is perhaps a technical but important point. I have made the point that a children’s redress scheme and children’s rights indicators should also be included.
I have read the evidence from Together, which the committee will hear from, I believe. There is a strategic approach, and the bill uses the phrase “as they consider appropriate”, so there are at least two discretionary elements. I agree with Together’s suggestion that the phrase “as they consider appropriate” could be removed.
We are supportive of public authorities having to undertake children’s rights and wellbeing impact assessments; in fact, we are working with some public authorities on that. That is a positive way to take forward children’s rights.
What Kay Tisdall just said is spot on. I would like the bill to be very clear. If it is to be essential and important, the language in it must be careful and clear, and there should be more obligations. The discretion element could water it down. I have nothing further to add.
Janys—do you have anything to add on that topic?
That is not an area in which the Faculty of Advocates operates, so I do not have anything useful to add.
I was interested to hear Professor Tisdall say that the Welsh scheme has been successful. It must have been a disappointment to see the case of a Welsh child being debated in the Supreme Court a couple of weeks ago. Their rights were being overlooked and the case was being defended by the Welsh Government. Such schemes have to be made effective. That was a case in which a child had been detained in unauthorised accommodation and their liberty had been taken away.
Does Andy Sirel have any comments on the children’s rights scheme or the children’s rights and wellbeing impact assessment?
I have two brief comments, which have been made before. I recommend that where section 11(3) says that the scheme “may”, it should say “must”. I could be convinced otherwise, but I do not entirely grasp why it should be discretionary to
“ensure children are able to participate in the making of decisions that affect them”,
because that is a relatively clear-cut intention of the bill.
I have a comment about section 14(3), which, similarly, is related to discretion. As a lawyer, reading technical parts of bills that say the “Scottish Ministers must”, I think, “Oh!”. However, the end of section 14(3) says “as they consider appropriate”, which negates the “must”. That is a drafting point to do with whether the provision will be discretionary, which is a decision for the committee to make.
The children’s rights scheme and CRIAs are not my area of expertise, so I cannot offer anything beyond what Kay Tisdall or other witnesses have to say. However, the future-proofing aspect is important to me. If the bill were to say that future Governments and Parliaments must do things that are in the bill, I would feel a bit safer. That is why I would turn away from the discretionary elements.
In terms of expectation setting, we cannot bind the future too tightly, but I take on board what you are saying.
Alexander—do you have any further questions or are you content?
I am content with the answers that I have received.
I have a final question about the court’s powers to determine compatibility, which Andy Sirel touched on in one of his answers. Part 4 of the bill sets out significant powers for courts to make declarators—a difficult word for me to say—in respect of incompatible legislation. Do you have any further comments on part 4, Andy? The committee would be particularly interested to hear whether you accept the view of the Scottish Government that strike-down powers for future primary legislation are not within the legislative competence of the Scottish Parliament?
My view on strike down is that it is a strong remedy. I like it, and I like the safeguards that are built into the bill with respect to passing notification to the Lord Advocate and the children’s commissioner. That allows us to think carefully about a robust remedy and allows it to be used appropriately.
The Scottish Government’s view that strike-down powers could not be applied to future legislation speaks to the issue of devolved versus reserved powers—that such provision is ultra vires, under section 29 of the Scotland Act 1998. On balance, that is right, because it is a restriction with regard to competence.
I do not know the answer to the question—I would need to apply my mind to it in more detail. It is interesting to ask whether the same problem would arise if we were to include the Scottish Parliament under section 7 of the bill. That might be tantamount to something similar—but perhaps not. When I heard that being raised in the earlier evidence session, I wondered whether that would do the same thing. It might be something for further exploration.
With regard to declarations of incompatibility, I have said already—[Inaudible.]—and I like the additional—[Inaudible.]—in place over and above the Human Rights Act 1998. I would like there to be a requirement on ministers. What they do is currently at their discretion, so I would like something more explicit in the bill. That is all I have to say. Is there a part of your question that I have not answered?
No, you have covered it fully. Do other witnesses wish to give their opinions on that? I will bring in Janys Scott. Morag Driscoll and Kay Tisdall shook their heads, but you did not.
This comes back to the point that I made at the beginning. As a litigator, I would prefer by far to go for a read down than for declarators of incompatibility, because a read-down gives the person who I am representing an immediate remedy in respect of compliant reading of the legislation, which has been very widely interpreted by the House of Lords and the Supreme Court. Therefore, section 19 is a great part of the bill. Declarators of incompatibility do not give a remedy; they just say that the law is wrong, which does not help the person who is being represented.
The compatibility point that the convener raised is a big constitutional issue. It would not be appropriate for me to express a view on that in giving evidence to a committee. It is a complex issue. I like the suggestion that ministers would be under an obligation to—[Inaudible.]
I am sorry. We lost some of your answer. I wonder whether you were about to talk about the duty to report. Your sound froze after you said, “I like—”. Will you repeat what you said, please?
I liked Andy Sirel’s point that something has to be done and that the matter cannot just be left hanging.
My final point is that there are some big constitutional issues in respect of how domestic legislation interplays with international instruments, and in the context of its being devolved legislation. Therefore, we will have some interesting work to do as and when the bill becomes law.
Thank you. That brings our evidence session to a conclusion. I thank Morag Driscoll, Janys Scott, Andy Sirel and Professor Kay Tisdall for their evidence, which has been really helpful and valuable. If there is anything that you did not have the opportunity to say or submit to us, please feel free to provide follow-up information. We might be back in touch through correspondence.
That concludes the public part of the meeting. The next meeting of the committee will be on Thursday 19 November, when we will continue to take evidence on the UNCRC. As we previously agreed, we now move into private session.11:29
Meeting continued in private until 11:37.
12 November 2020
Second meeting transcript
The Deputy Convener (Alex Cole-Hamilton)
Good morning, and welcome to the 24th meeting in 2020 of the Equalities and Human Rights Committee. We have received apologies from Alexander Stewart, Gillian Martin and Ruth Maguire, so I, as deputy convener, will be chairing the meeting. Linda Fabiani will be joining later as a substitute for Gillian Martin.
Our first item of business is the second evidence session on the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill, or the UNCRC bill as it is also known. We will hear from two witness panels and I am grateful to all of the witnesses for their virtual attendance. I welcome our first panel: Bruce Adamson, who is the Children and Young People’s Commissioner Scotland; Kavita Chetty, who is head of strategy and legal, Scottish Human Rights Commission; Rosemary Agnew, who is the Scottish Public Services Ombudsman; Dragan Nastic, who is UNCRC strategic lead, Scotland and United Kingdom office of UNICEF UK; and, from Oslo, Elin Saga Kjørholt—I have a pronunciation guide here—who is a lawyer at the Norwegian Ombud for Children and is also representing UNICEF in Norway.
It is a big panel, so I ask the witnesses to be succinct. If you do not feel that you need to add any more in response to questions that have been answered, please do not feel obliged to. We will move to questions in just a second. I remind members that if your question is addressed to a specific witness, please identify them by name, otherwise we will work to the order in which I have just named the witnesses. Once a member has finished their questions, I will invite the next questioner and so on until the session is concluded. We have a lot to get through in a limited amount of time and it is very important that everyone is as focused as possible. Please allow broadcasting staff a few seconds to operate your microphones before beginning to ask a question or provide an answer.
I will begin with the first question. There is strong support for direct incorporation of the United Nations Convention on the Rights of the Child into Scots law. What are your views on the Scottish Government’s approach to the bill? What are the potential benefits or disadvantages of this approach?
Bruce Adamson (Children and Young People’s Commissioner Scotland)
Fully and directly incorporating the UNCRC into domestic law is the most important thing that we can do to ensure that children’s rights are respected, protected and upheld. The bill is a bright ray of sunshine in what has been a very gloomy year. I strongly commend the Scottish Parliament for understanding the importance of progressing the bill during the pandemic, which has shown how vulnerable children’s rights are.
The bill is really strong. It builds on an understood framework that we already know through the Human Rights Act 1998 and, importantly, it strengthens it. It has not only the legal compatibility obligation, but the scheme and the additional measures of implementation that are very useful in making rights real. I warmly welcome the approach to time limits, the strike-down and read-down powers, and the additional powers for my office to take legal action to ensure that the right to an effective remedy is supported. Importantly, the bill fully and directly incorporates the UNCRC, as far as it is possible within devolved competence. It brings all the civil, cultural, economic, political and social rights that are contained in the convention into domestic law, and that will lead to a real cultural change—we have seen it in other places—and will make rights real, particularly in economic, social and cultural life.
Some improvements can be made to the bill around interpretation, the definition of public authorities, commencement, the role of the Parliament and ensuring effective remedy, but it sends a very strong message to children and young people across Scotland. They have been calling for incorporation for decades, and I know that the committee has been hearing from children across the country in their thousands, as I have, who are celebrating the bill, which will put their rights into law.
The Convention on the Rights of the Child is special, and the progress on the bill is something that we need to celebrate. The world will be watching tomorrow as we all celebrate the 31st anniversary of the Convention on the Rights of the Child and world children’s day. The time is now for the bill. It is a good bill. There are some things we can do to improve it, but it is really something to celebrate.
Kavita Chetty (Scottish Human Rights Commission)
Good morning. As Bruce Adamson said, the bill is a highly significant and most welcome step to progress children’s rights in Scotland. The Scottish Human Rights Commission warmly welcomes it. The advantage of the bill and the approach that it takes is that it significantly strengthens the rights of children and young people. It does that in law and it drives us to do that in practice. It does that in a twofold way: by ensuring that children’s rights are part of decision making at all levels and by making rights enforceable by courts where violations occur. It takes a maximalist approach by directly incorporating the UNCRC and its first and second optional protocols into Scots law, as far as that is possible within devolved competence. The direct approach of, in effect, lifting the convention text and placing it on a legislative footing is really welcome, because it seeks to ensure that there are no unintended gaps in protection. It ensures that we fully secure the standards as set out in international law and gives us scope to evolve the protections over time.
As the committee knows, the UNCRC is the most widely and quickly ratified international human rights treaty, ratified by 196 United Nations member states. As set out in the preamble to the treaty, its fundamental objective—which is also a source of interpretation for the rights in the bill—is to ensure that children grow up with happiness, love and understanding, and to ensure special safeguards and care, including appropriate legal protection.
As the committee is aware, multiple UN committees have called on the United Kingdom to incorporate the treaty standards into our domestic laws. Scotland will be the first part of the UK to do that to the extent possible within devolved competence, following in the footsteps of jurisdictions around the world—Belgium, Norway Spain, Sweden—and paving the way, importantly, for incorporation of other international treaty standards. Overall, and subject to some of the issues that we are likely to come to in the course of today’s evidence session, the commission is highly supportive of this very progressive legislation and the outcomes that it seeks to achieve. There are a small number of areas where the bill could be further strengthened, for example in the interpretation of rights, the definition of public functions to be carried out compatibly with the rights and how and when access to children’s rights is considered in policy and decision making in an upstream way. I am sure we will cover some of those issues in today’s session.
I would like to note that the rights of all of us, children included, are highly interrelated and interdependent, so the incorporation of the rights of all people—not only children and young people—will be vital to secure and embed a human rights culture across society. We see the bill as strongly paving the way for that. The commission is a member of the national task force for human rights leadership, which is looking at taking that forward. It will be really helpful to have coherence and alignment between the duties and obligations that the bill provides for and a proposed broader framework that secures other international and core duties in a meaningful way. We are mindful of that in the comments that we are providing today about the bill.
Overall, the approach of the bill—it lifts the convention text directly and it is maximalist, in that it tries to go as far as possible within devolved competence—is really welcome. The bill and the approach that it takes is something of which the Parliament can be proud.
Rosemary Agnew (Scottish Public Services Ombudsman)
Thank you very much for the opportunity to speak this morning. I am not going to add to what others have already said about improvements to the bill, but you asked us about its pros and cons.
The pros are self-evident and they speak for themselves. In particular, there is the emphasis on the child as opposed to children as an amorphous group or as a vulnerable group—however you want to say it. It is really important that the focus is on the child.
There are a couple of things that I would regard as threats, rather than cons, that you need to be mindful of, and one is about the transition from childhood to adulthood. We have talked about definitions. A child is a child up to the age of 18, but often those who need the support of public services need it beyond the age of 18. We need to think about having alignment and a cohesive approach.
The other issue is not a threat, but we need to be mindful of supporting public bodies with the incorporation. Over the past year, with the incorporation of new whistleblowing powers for the national health service, we have learned that the issue is not just about process or policy; it is about enabling a culture change at the roots level. My interest is very firmly in complaints and complaint handling, but I recognise that that cannot be taken in isolation and, fundamentally, we need a culture of appreciating the child in everything that we do.
The other thing to emphasise, which a couple of people have mentioned, is the definition of a public authority. I think it is very helpful to think of it as a public function or public service, so that you focus not on the organisation but on what is being delivered and to whom. I will leave it there on your first question, because I do not want to take up time in which others could add things, and we may come back to some of those issues later.
The Deputy Convener
I will now bring in Dragan Nastic, strategic lead for UNCRC at UNICEF.
I am afraid we do not seem to have audio from Dragan. We will move to Elin Saga Kjørholt while we sort out Dragan Nastic’s audio issues.
Elin Saga Kjørholt (UNICEF)
Thank you for the opportunity to speak to you today about the experience that we have had in Norway. I support what the others have said. It is very important, in this holistic approach, that all the rights are taken into the law at once, so that we do not have a fragmented approach. The rights in the CRC are combined in a holistic way, so they need to stand together.
Full and direct incorporation has been very successful in the Norway experience. We have changed awareness quite a lot to see children as subjects with rights instead of objects that we should support, which is very useful for how we see children when we approach them with services, for instance. We also have much higher awareness in all levels of society, publicly, through the media. Since incorporation, all the legal actors have quite different approaches to seeing children as rights holders, which is very useful. We have also seen that the authorities became much more committed to the rights than they were before. It has changed the culture of how we view children and children’s rights.08:45
You asked about the challenges. The argument in Norway was that the provisions were too vague and aspirational, but we have seen that they are not very different from other legal instruments—at least not those relating to other human rights. The Norwegian Association of Judges said, “We do this every day. This is what we do. We interpret legislation that is not always so clear.” That is one point.
There was also an objective that incorporation should have budgetary consequences for the superior mandates of the Parliament, but we have not seen that in Norway. I can explain more about that later.
The Deputy Convener
Thank you so much, and I extend a particular welcome to you in Norway. We will try Dragan Nastic and see whether he has his audio. Hello, can you hear us?
Dragan Nastic (UNICEF)
Good morning. Can you hear me?
The Deputy Convener
Yes, we can.
Thank you for inviting me. It is a privilege to be with you this morning. UNICEF congratulates Scotland on an excellent bill. We work in 196 countries and territories all over the world and we have seen that, in those countries where the CRC has been incorporated into domestic law, it has served as and provided a platform for legal and other non-legal measures of implementation. It was instrumental in bringing rights home to children and duty bearers.
From an international perspective, the Scottish bill is, indeed, unique. First, you are fully and directly incorporating the convention as defined and recommended by the UN Committee on the Rights of the Child. Beyond that, the bill also has a package of active and reactive implementation measures, and in that sense it is really unique from an international perspective. No other country has gone that far in its process of incorporation. We are absolutely sure that the incorporation in Scotland will be a success and will lead to a better and more effective realisation of child rights.
The United Nations Children Fund is very keen to work together with you in the implementation process. The bill has many qualities and there are many good things to say about it. There are no shortages or faults. There are some areas where the bill can be further strengthened, but it is excellent. We congratulate Scotland. We have promoted and publicised the bill in all countries in the world. We very much hope that Scotland will now show the way here in the UK, because it is the first UK country to incorporate the convention, and that it will serve as a guiding light for other countries where incorporation is on the agenda, such as Denmark and Germany. Bravo, Scotland. Thank you.
The Deputy Convener
Thank you very much—that was certainly worth waiting for.
Dragan Nastic and Elin Saga Kjørholt touched on my second question, but I would like to expand it to the wider panel and go into a bit more detail. Scotland is by no means the first country to incorporate the UNCRC. What can we learn from the approach to incorporation of the countries that have gone before us and can that help to improve the bill? I will go to Bruce Adamson first.
That is an important point. Our bill is fantastic and goes further than other places have gone, but we are by no means the first country to do this. A number of other countries, through their constitutional systems, automatically incorporate as soon as they ratify treaties and so have a different legal tradition. We have learning from them and from other countries that are more similar to Scotland.
There is some really good progress when we look to our Nordic neighbours and to our North Sea neighbour Belgium. This week, I participated in a conference of the European Network of Ombudspersons for Children, which was attended by commissioners and ombuds from all those countries. They spoke about the cultural change that is delivered through the mechanism of incorporation. As Elin Saga Kjørholt talked about, there is a changing view towards children, particularly on things such as participation in decision making and children’s rights budgeting. Incorporation changes the way in which we understand children’s rights. That is important and it is the thrust of the bill.
The reason why we need the legal protections and the ability to take legal action is to help to drive that culture change, but the bill is really about changing the way in which we see children. The examples that were given from other countries—UNICEF has studied the issue in depth, so I am sure that Dragan Nastic will be able to speak to it—show that there is a real change in how children perceive themselves and in how those in power perceive children. Decision making becomes more efficient and effective, because children’s views and their best interests are more properly considered, and that leads to better outcomes.
There are a lot of very positive changes. It speaks to article 4 of the convention, which is about the state’s obligation to put in place all legal and administrative processes to ensure that children’s rights are realised. It is also about using the available resources to the maximum extent possible. Incorporation starts to change the dynamic in how decisions are made and how services are delivered to particularly focus on children’s best interests, and we also see big improvements in children’s participation in decision making.
It is all good news. Although we should be very proud, because the bill is very strong, we have a lot of learning to do from colleagues across Europe and other parts of the world who are further along in the journey than we are.
The Deputy Convener
The witnesses need not go into great detail if this area is not your speciality, but we are keen to hear from you. Kavita Chetty, would you like to add anything?
No. I will defer to the children’s rights specialists and international colleagues on that important question.
The Deputy Convener
Rosemary Agnew, would you like to contribute on that specific question?
I will not repeat what Bruce Adamson has said so eloquently. I will just focus on the sort of things that I would like to learn from those who have gone before us. I am sorry if this sounds mundane, but it is about the practicalities, such as what people did, how they helped to bring about culture change and how they supported children, parents and carers and public services to bring about that culture change and think creatively about how services could be delivered in a simplified way to encompass all the things that they were trying to achieve.
The other thing that I would be interested to learn is how people measured whether the approach was successful. How do they know it worked? It is not enough just to say that we are doing it; we need to be able to demonstrate that we are doing it well.
Incorporation has great value and brings a lot of positive impacts. Our research and observations in countries around the world show that, in the countries where direct incorporation has taken place, awareness of child rights has grown and the acceptance of children as rights holders has been strengthened as a result. That is especially the case in countries where a lot of preparatory work and consultations have been done on the incorporation.
Sweden is a good example of that. The preparatory work, the consultations and passing the bill took several years and involved a lot of stakeholders. We think that the process of incorporation that is being followed in Scotland very much builds on the positive experience of Sweden. There was a wide consultation last year that involved many stakeholders, duty bearers and rights holders. That dialogue continues, and we thank you and your committee for this inquiry and evidence session. That will all contribute to better implementation.
A second point is the implementation of the incorporation legislation. We have conducted specific research on all the countries that have incorporated the convention into their domestic law, either by automatic ratification or by a separate parliamentary act, and the countries where major pieces of law reform have been done. A key finding from that research is that, in most of those countries, unfortunately, the incorporation was followed by stagnation and the momentum was not kept up or followed with a range of legal and non-legal measures of implementation.
It is important to bear in mind that incorporation is not an end in itself and that it must be part of a broader holistic strategy for promoting, protecting and realising child rights. The main obstacles and difficulties that were reported to our research show that there is a need for better planning and co-ordination and more awareness, training and education activities. Only that can lead to better awareness of child rights and a more robust infrastructure to ensure implementation and more effective realisation of child rights.
UNICEF wants to step up our activity in Scotland and contribute to effective implementation of the bill. In Scotland, 1,337 primary and secondary schools are part of our rights respecting schools programme. That means that 54 per cent of all schools are affiliated to our scheme, through which children not only learn about their rights but live their rights. Children become aware of their rights and of the rights of their peers, and they respect those rights. Other members of the scheme are institutions such as stand-alone nurseries, additional support needs schools and children’s homes. We very much want to step up our programme in Scotland and align it closely with your implementation measures, so that we make our contribution and ensure that the stagnation that I talked about does not happen in Scotland and instead that the bill is followed with much stronger and effective realisation of child rights.
The Deputy Convener
Elin Saga Kjørholt, you are speaking to us from Norway, which obviously has gone before us in this regard. Can you answer the question about international examples from your experience?09:00
Elin Saga Kjørholt
I guess that I will present more concrete examples for you on the question.
I agree with Dragan Nastic and the others that it is an important step to incorporate the whole CRC and take it into domestic law. That is the first important step and, from what I have seen of your bill, it looks excellent. The main point is to take the whole thing. That is important, because the convention is holistic. There is a close connection between some of the articles, and they cannot be separated.
That is the first step, and then some of the benefits come for free, because awareness will increase, especially among lawyers. In Norway, they started to use the CRC as a tool much more, including in the courts. That raised awareness among people in other services, when they saw a court order that said that they had to speak to children before deciding what to do. The awareness starts to move out into other services, but that is not enough.
You must have a strategy for how to benefit from the incorporation. You should increase knowledge. Of course, there is literature such as the Tobin commentary from the Oxford University Press, but that is too difficult for people who are working in services. In Norway, the authorities gave us money to make a book that could be used and understood by people providing services directly to children in kindergartens, schools, the welfare system and the health service. That is very important.
It is also important to provide training. We should have done much more training in Norway. If we had done so, we would have been better off and further on with the implementation side than we are today. That is my advice. You should also implement a monitoring system. In Norway, we have county governors, and we have an ombudsperson for public authorities. Those institutions look into how our different services apply the CRC. It is important to monitor that and to provide guidance on how to implement the CRC and fulfil children’s rights.
I hope that it would come naturally to lawyers, but maybe you should train lawyers, and those involved in complaint mechanisms should have training on how to understand children’s rights. You should also use tools such as the general comments, which are useful.
The Deputy Convener
Before I pass over to my fellow MSPs, I advise everyone that we have an hour left for this panel and we have 10 questions to get through, so I am keen to keep answers as succinct as possible. However, we are grateful for your input so far.
Mary Fee (West Scotland) (Lab)
Good morning. I have a number of questions to ask, which I will group together. I apologise if my questions seem rather long, but I am keen to get through everything. The first is on section 4 of the bill—“Interpretation of the UNCRC requirements”. Do you think that it should be expanded to take account of the general comments and concluding observations, and any other opinions on international human rights treaties? Do you believe that amending the bill in that way would have any unintended consequences?
My second question is about duties on public authorities and the role of the court. Section 6 of the bill places a duty on public authorities not to act incompatibly with the UNCRC requirements, but it has been suggested that it would be better if the bill was strengthened by introducing a “due regard” duty. I would be keen to hear the panel’s views.
Those two questions cut right to the heart of how we could improve the bill. I strongly agree with strengthening section 4 on interpretation. I often describe the UNCRC as the most beautiful legal document in the world. As Kavita Chetty mentioned, the preamble starts with the idea that children should grow up in a family environment of happiness, love and understanding, and it goes on to set out all the obligations to support families to make sure that children can thrive. However, it is a 31-year-old treaty, and it is important that we understand the rights in context. There is a lot that we can do to strengthen that.
As Elin Saga Kjørholt said, judges interpret law every day. That is not a challenge for judges, but it would be useful to add in additional guidance on how to understand the treaty in the modern context. The Vienna Convention on the Law of Treaties sets out that interpretation should be carried out in good faith and in accordance with the context and the objective and purpose of treaties. The UN committee does an amazing job in setting that out through things such as general comments, which are the interpretative guidance on specific elements of rights, or concluding observations that are specific to states, which we can also learn from. In addition, optional protocol 3, which the UK has not yet ratified, provides a communications mechanism so that cases can go to the committee for determination. Those decisions would provide very important jurisprudence when it comes to interpretation. The work of the other treaty bodies that speaks to how we understand and interpret the convention would be useful, too. I think that the bill should be strengthened in that respect.
A good example is the general comment that is currently being produced on children’s rights in the digital environment, on which work was done through the European Network of Ombudspersons for Children last year. The convention was drafted before the internet was widely available, and certainly before social media, so the general comment will help us to understand how to interpret the rights to privacy, to protection, to access information and to education. We need that. General comments go out of date over time, so we need to be able to keep up with the living instrument that is the convention. That is very important.
It is also very important that the legal community has access to that information and knows that that is the approach that should be taken. It is important that such instruction is on the face of the bill, because judges in other countries have sometimes commented to me—with a sense of frustration—on the lack of arguments. When such instruction is not expressed on the face of a bill, the legal community can sometimes be slow in making some of the arguments and properly understanding what is required. The purpose of that is to support not just the judiciary but the legal community and children themselves in understanding that the convention needs to be interpreted through the aid of additional things such as general comments, reference to which we could add to the bill. I strongly support that.
On public authorities, was it the private-public element that you asked about or “due regard”?
My question was about “due regard”; I will come on to the issue of public authorities in a moment. As it is currently drafted, the bill contains an obligation to act in a way that is not incompatible with the UNCRC, but it could be strengthened by the inclusion of a “due regard” duty.
We have the experience in Wales, where they have led with the “due regard” duty. The important thing for me is that we have a strong duty to act compatibly with the convention, which I think drives legal change. The inclusion in the bill of a duty not to act in a way that is incompatible with the convention will drive change. A “due regard” duty might be a useful additional requirement, but it should not be seen as being in any way a substitute for the very important legal duty to not act incompatibly with the convention. I think that that, in and of itself, is enough to drive change, because it is necessary to put in place mechanisms such as impact assessments to ensure that that is delivered on.
The commission strongly believes that section 4 needs to be built on and strengthened to ensure that we keep pace with the highest standards of protection internationally. One of the most compelling advantages of the direct incorporation model that is taken by the bill is that the formulation of the rights is identical to that of the international treaty, which means that it is identical to that of those rights that have been directly incorporated in other jurisdictions around the world and that, therefore, there is a rich source of international and comparative sources of guidance on the rights. That puts flesh on the bones and gives meaning and content to the rights for public bodies and the courts.
As it stands, I do not think that the bill capitalises on that advantage by directing courts to those sources of interpretive guidance. We are strongly of the view that, to fulfil the ambition of the CRC being the gold standard in children’s rights and it keeping pace with those developments in international law and being a living instrument, there needs to be a direct link to international guidance on the interpretation of the rights.
The domestic courts are quite well accustomed to drawing on international sources to aid interpretation. They have done it for a long time with the Human Rights Act 1998, which involves taking account of European Court of Human Rights case law, and they would do it again with regard to guidance from elsewhere. We recognise that the general comments are not binding sources of law and are not drafted as such, but they provide an invaluable and authoritative interpretive analysis to give substance to the rights that are contained in the bill. Courts are equipped to take those non-binding sources into account and to give them appropriate weight in their reasoning.
In recent years, we have seen how courts have had regard to unincorporated treaty provisions and general comments as important sources of law and guidance. For example, we saw that in the Supreme Court case that challenged the benefit cap. The court cited the UNCRC and the best interests of the child, and it explicitly referred to general comment 14 of the committee as authoritative guidance. In saying that, it is not a routine approach for courts at the moment, and I think that appropriate signposting for courts on the face of the bill would be very welcome.
The First Minister’s advisory group on human rights leadership, which advised on a broader framework and looked at other international treaties, particularly the International Covenant on Economic, Social and Cultural Rights, recommended that there should be an obligation on courts to have regard to international law. That included the UN treaties, the treaty body decisions, general comments and recommendations, and comparative law. It is important to note the distinction between having to have regard to such sources and their consideration being binding. A duty to have regard to those sources merely ensures that courts will take them into account. However, it will also ensure that there is a strong connection between the rights in Scotland and those under the international framework.
As far as unintended consequences are concerned, I think that the biggest risk here is the unintended consequence of not taking account of such sources and ending up with rights in the framework that are not aligned with the rights internationally in other jurisdictions around the world.
On your second question, we have two issues with the duties—one with the formulation and one with the framing. It is very welcome that we have the duty to not act incompatibly—that is great—but a key policy driver of the bill is to secure rights-based decision making in an upstream way, so that children’s rights are embedded in policy and law making up front. One of the ways in which the bill seeks to do that is through the children’s rights scheme—the reporting duties on public bodies—but, particularly with impact assessment, that will often be directed only at situations in which a policy decision is being taken or something is being considered. I am not convinced that it pushes the proactive consideration of opportunities, whereby children’s rights can be advanced. That is particularly important when we are thinking about rights of a socioeconomic nature, such as the rights to housing, food, health and so on. Because those rights require positive steps to be taken to ensure that they are fulfilled, they require to be progressively realised, which involves improvements being made over time.
We think that the bill could go further to ensure that those underlying obligations—those proactive positive measures—are better understood by public bodies so that they can build human rights and children’s rights into their decision making, their priority setting and their budgets. There are different ways to achieve that and drive through that change. It could be done by including in the bill an overarching obligation to respect, protect and fulfil the rights. Another way to do that would be to profile the progressive realisation duty more strongly, but a way that would be more familiar to public bodies would be to reframe and differently articulate that duty and to include the “due regard” duty. At present, the bill takes the model that is set out in section 6 of the Human Rights Act 1998, whereby it is unlawful for a public authority to act in a way that is incompatible with the rights in the European convention on human rights and the Scotland Act 1998.09:15
The proposal of the First Minister’s advisory group on human rights leadership and the children’s commissioner involved a dual duty that comprised a compatibility duty and a “due regard” duty. I think that that approach would provide clarity on the obligation of conduct or process and would ensure that there was rights-based decision making as part of the “due regard” duty, as well as those of—
The Deputy Convener
I am sorry to stop you. It is fascinating stuff, but I am conscious of time and how much we have to get through.
Rosemary Agnew, is there anything that you would like to add?
In relation to section 4, it is not just the judiciary and public bodies that would benefit from the proposed extension. Children are often involved in a range of other processes in which decisions are made about them or on their behalf, such as children’s hearings. The more advice, explanation and interpretation there is, the better; that can only be a good thing.
On the duty not to act incompatibly with the UNCRC requirements, I observe that showing that your action is not incompatible with something is quite difficult. It is probably more helpful for public bodies to have clarity and positivity about demonstrating what they are doing.
The Deputy Convener
Thank you for your brevity. I will bring in Dragan Nastic.
I also think that the section on sources of interpretation should be extended to include not only the products of the UN Committee on the Rights of the Child, but general comments by other UN human rights monitoring bodies. I refer the committee to the submission by Professor Aoife Nolan, which explains the importance of those products for better interpretation of the convention. The policy memorandum recognises the value of such sources of interpretation, but it says that, because they are not legally binding, it was decided that they should not be given special status. I think that a way out would be for such sources to be mentioned on the face of the bill without necessarily giving them any special legal status.
I want to point to two examples from abroad—a positive one and a negative one. The positive one is from Sweden. The Swedish Government’s Ministry of Justice produced a guide on interpretation of international treaties—especially the Convention on the Rights of the Child—specifically for the judiciary. It is not a statutory guide; it is more of a handbook or manual—it is almost 200 pages long—that will help the Swedish judiciary not only in their training, but in using the convention when they decide on specific individual cases. The policy memorandum to the bill mentions that the Scottish Government intends to produce a number of non-statutory pieces of guidance, so that tool or the children’s rights scheme could be used to extend the sources of interpretation. It is very important to do so.
A negative example is from Iceland, where the incorporation bill did not contain any proactive measures. Indeed, following the incorporation, implementation was a bit slow. Government officials tell me that, even these days, the level of knowledge and awareness of the convention and child rights among the judiciary is still low. That is one of the reasons why the convention has not been widely used by the judiciary. It is important that section 4 is extended.
I have a quick line about a “due regard” duty. A “due regard” duty is a positive measure, but the Welsh Government took that option because it could not incorporate the convention. It would have done that, but incorporation of international treaties is still outside the powers of the Welsh Government and the Welsh Parliament, so the “due regard” duty was their maximalist approach. As Bruce Adamson said, the Scottish bill has a number of proactive and reactive measures that I am sure will ensure compatibility and proactive implementation of the convention.
The Deputy Convener
Thank you very much. Finally, we come to Elin Saga Kjørholt, after which I will bring Mary Fee back in.
Elin Saga Kjørholt
On the Norwegian experience of general comments, they are a very important tool in interpreting and understanding the rights, and in applying them. As has already been said, the document is starting to get quite old and it will not be renewed, so such interpretations by the committee are important.
In Norway, the general comments will be preparatory work, which means that they do not have any legal status but they will be taken into account and will apply when courts interpret the rights. The Supreme Court of Norway has considered the weight of the general comments several times. This spring, it concluded that it considered them to have great weight when it interprets rights in court cases.
The general comments are also important tools for people who work with children, especially those on the right of the child to be heard and the best interests of the child. They are very important tools that show how to take children’s rights and interests into account in practice.
The Deputy Convener
Thank you, and thanks for your brevity as well. Mary Fee has more questions.
I have two further questions. The first concerns public authorities, and it is something that all of our panel members have touched on in previous answers. Are you content with the definition of public authority? If not, what do you think needs to be done to strengthen that definition, and how should it be changed?
This is a very important point. We need to strengthen that. The intention is to make sure that children’s rights are always protected, and we need to insure against the privatisation and opting-out of those protections. General comment 16 from the CRC is very clear about the fact that states are not exempted from their obligations by outsourcing or privatising, so it is important that that protection is in there.
I understand the approach the Scottish Government is taking here, following the very familiar Human Rights Act 1998 model, but we are aware of issues relating to that, which we know from the jurisprudence on that—you received some very strong evidence last week on this point, and I would also point to the written evidence from the SHRC and JustRight Scotland, which cover that point well.
I associate myself with the view that we need to strengthen the bill in that regard. A lot of this work has already been done. The dissent from Lady Hale in the YL v Birmingham City Council case is instructive, as is the work of the Joint Committee on Human Rights at Westminster. I associate myself with the comments of Dr Katie Boyle and Andy Sirel from last week, because I think there is an easy way forward here. However, the key point is that the way in which the Human Rights Act 1998 provision, which is the same as this, has been interpreted has narrowed the definition, which means that children would miss out if we do not change this definition.
The Deputy Convener
Kavita Chetty, you may come in now—apologies again for cutting you off mid-flow earlier.
No problem. I probably have more to say on this question than on other areas that you will want to cover. As the children’s commissioner has just said, the approach taken in the bill here is the same as that taken in the Human Rights Act 1998, where a public authority is defined as including any person whose function is of a public nature. However, we know that that definition has been beset with difficulties when interpreted by the courts. We think that it needs further consideration and that alternatives need to be explored.
As Bruce Adamson has said, it is a well-established principle of international law, including explicitly in the UNCRC general comment 16, that the state cannot divest itself of its human rights responsibilities by outsourcing or delegating them. If Scotland is to fulfil its international obligations in the way that the bill intends, it must ensure that those accountability gaps do not persist through the contracting-out of services that are not caught by the definition in the bill and it must ensure that services that are outsourced to private or voluntary sectors are brought within scope. The children’s sector has flagged that that might happen in relation to private housing providers, childcare, private foster care, private schools and various other areas. The court’s interpretation of section 6 of the Human Rights Act 1998, which is mirrored in this bill, has created a lot of uncertainty about the situations where that act applies. That uncertainty over the application and the scope of the legislation creates unintended and unequal outcomes for individuals, and it undermines the idea that human rights need to be central to public service delivery. Those involved in the delivery of public services, whether they are a core public authority or a private party, need to be clear about their obligations to accept that idea and implement it. The situation needs to be improved.
We think that further clarity can be provided through a strengthened definition, through guidance or through regulation. That would mitigate against those unintended accountability gaps. I will not go through all of the case law history of this now, but the approach that the courts have taken appears to be in direct conflict with what was said during the passage of the Human Rights Act 1998 through Westminster. The Joint Committee on Human Rights at Westminster has been very concerned about that. It has conducted two inquiries into the issue, one in 2003-04 and one in 2006-07. The report suggests several options to deal with the situation, and we think that probably a mix of those options could strengthen the approach taken in the bill.
The first approach involves strengthening the definition. It suggests alternative wording with explicit connection between the functions that are being performed by the body that are pursuant to a contract or some other arrangement, and it also says that it is possible to look at introducing guidance or even regulations that provide further clarity. For example, that guidance or those regulations could set out a connection between the service that is being provided, based on the functions that are involved, and the rights that are to be protected in the bill. That would be in line with international law. There are criteria set out by Lady Hale, as referred to earlier, in the dissenting judgment in the key case in this area, YL v Birmingham City Council, which provide guidance on what could constitute a public function. We think that that could be worked with and put into regulation or guidance to provide more clarity on this issue and avoid unintended gaps in accountability.
I will be brief. I agree that more work needs to be done on the definition. It is important to focus on the function, but equally there has to be a focus on the obligation—I think that that was the phrase that Bruce Adamson used—and the obligation needs to follow the child wherever they are receiving a service. In designing these services and when setting out the definition in the bill, I would ask whether the child’s rights and the protection of them are as strong now as they would be if a public service had been delivering the service directly.09:30
I very much agree with everything that Bruce Adamson and Kavita Chetty have said. Here, the duties go much wider than just ensuring that children have redress and are able to take legal action against public authorities or anyone else providing a public function for children.
Article 3(3) of the CRC establishes the obligation of the state party to set standards in conformity with the convention and to ensure compliance by appropriate monitoring of all institutions, services, facilities and providers. There is a duty not just to enable access to justice but to set standards, to set up permanent monitoring mechanisms and to do regular inspections of all these public authorities and private providers.
I will refer you to the general discussion day of 2002 by the UN Committee on the Rights of the Child specifically on this topic and a guide and recommendations put forward by the UN committee on this very subject. That is another example of how important these general comments and other documents of the UN committee are for effective implementation of the convention. I think that, as Kavita Chetty said, these duties and obligations should find their place either in the bill or maybe through some non-statutory guidance or a children’s rights scheme.
Elin Saga Kjørholt
We do not have this discussion in Norway. As long as the private services deliver services on behalf of the officials in Norway, the officials in Norway are bound to ensure that they have followed the CRC. Also, as a human rights lawyer, I agree with Kavita Chetty’s arguments.
My final question is on the court and tribunal system, because it is what will be delivering the judicial remedies in the bill. Do you think that the existing court and tribunal system is accessible to children? If not, are there any changes that we can make through this legislation to make it more accessible? How can we ensure that the remedies that are applied will be effective?
This is a very important point. On the example that was given earlier about judicial instructions, we have a bench book in Scotland. A lot of work is done by the Judicial Institute for Scotland and others to make sure that the judiciary at all levels is properly up to speed on things, which is very useful. There have already been discussions and work done by the Judicial Institute for Scotland on this issue. Judges, as others have said, are already very used to the interpretation of international law, so that is very useful.
I would also point to the work that has been done by May Dunsmuir, the president of the health and education chamber of the First-tier Tribunal for Scotland, particularly around additional support needs and the new suite that was opened, which was designed by children for children. There is a lot of interesting work going on to make sure that we can have child-friendly justice and access to an effective remedy. There is a lot that we can learn from, but the starting point is a bit of a low one, I have to say.
Our mechanisms for justice are designed by adults for adults. They are even quite intimidating for adults, to be honest, and so making sure that children who are in a position of having their rights breached are able to access the system will require significant change. We have seen some very good practice though in Scotland, which is useful, as is, again, some of the work that the children’s hearings system is doing. There are some real positives, but we have a long way to go. The important thing is getting children and young people to be part of that design change, but we have a long way to go to deliver child-friendly justice.
A number of the written submissions talk about what an effective remedy looks like and all the different elements of that. I will stop there, in the interests of time, but I will just say that an effective remedy involves lots of different things. What I would look to see from the bill is quite a radical change in the way in which the courts and tribunals work to make them more accessible to children and young people.
This is another meaty question. As Bruce Adamson said, we know that children—not only children but people of all ages across Scotland—face significant barriers to accessing justice in its fullest sense. In international law terms, remedies for violations are expected to be accessible, affordable, timely and effective, and they encompass not just judicial remedies through the courts but also administrative remedies. No doubt you have heard from many young people about how our current system does not provide for that and that routes to justice can be convoluted, hard to find, lacking in support, slow and expensive.
The UN Committee on the Rights of the Child has pointed out in general comment 5 that, for children to access justice, they need child-friendly information, advice, advocacy, support for advocacy, access to complaints procedures and access to assistance. I saw in evidence to the committee last week the extent to which people were alluding to the current system having evolved considerably over recent years, in relation to, for example children’s participation in legal processes, but it still falls short of being child friendly. Colleagues from the children’s sector will be able to speak to those issues better than I can.
I think that the bill still provides an opportunity to help us to continually evolve, improve and build on our redress system to meet the needs of children. One of the ways that we think that could be done is by ensuring that the children’s rights scheme under the bill asks for more detail to be set out on access to justice support for children and young people and for what is being done to advance that—for example, information on how child-friendly complaints are being advanced, legal aid, how the resourcing of children’s access to the assistance is being improved and how services for vulnerable children, like care-experienced children or migrant children, are being supported. It can also be addressed through guidance to public bodies on making accessible information available to children and young people and including that as part of the reporting duties. We think that there is an opportunity there.
I will not go into the second part of your question in a lot of detail now, because it is a huge question. The right to an effective remedy—not just accessible but effective—is the cornerstone of human rights. I will not go into the remedies that are currently in the bill. It is worth saying that we think that, because of the nature of the types of challenges that will be dealt with—the systemic issues, the issues of a socioeconomic nature where there are multiple victims and the issue of there being multiple responsible parties—we potentially need to develop a broader range of remedies by the courts over time. Dr Katie Boyle talked about that somewhat when she gave evidence last week.
One of the things that we would consider in that regard would be the development of structural remedies through, for example, structural interdict to address those systemic issues. Essentially, that is where a court gives a specific direction to a public body to ensure compliance, so that the violation is not perpetuated for others. The court might even take a supervisory role in overseeing the implementation of a judgment. I do not think that I have time to go into that in any more detail here now. The national task force on human rights leadership will be looking in more detail at how we can evolve those types of remedies over time.
The Deputy Convener
Thank you. I should say that, if any of you would like to expand on any of your answers today, you are more than welcome to write to the committee.
I am not going to repeat what has already been said, but I will make a couple observations. This issue is about remedy. If one of the things at the heart of what we are doing is ensuring that children are listened to—in their words, not our adult interpretation—we have to be much more open to remedies being resolution-based, to involving children and to listening to what they think the remedy should be. I strongly support Kavita Chetty’s point about structural changes because, as with any complaints system, we need to learn from it for the benefit of all. I will stop there in the interests of brevity.
Kavita Chetty has beaten me to it. I was going to suggest the very same thing: that access to justice be included on the list of the things to be addressed in the children’s rights scheme, because, children’s dependent status creates real difficulties for them in pursuing remedies for breaches of their rights. States need to give particular attention to ensuring that there are effective child-sensitive procedures available to children and their representatives.
I would cite the good example of Wales, where the children’s rights scheme produced in 2012 gives a lot of attention and space to the issue of access to justice. There are two separate chapters in that scheme dealing with this issue. There is a chapter called “What can children and young people (or their representatives) do if they think Ministers have not had due regard to the UNCRC?” That chapter lists a number of available avenues, legal and non-legal, to take an action. Then there is another chapter called, “Support for children and young people who want to complain about or Challenge the Welsh Ministers”. That chapter deals with specific mechanisms in Wales for child-friendly information, advice, advocacy, support for self-advocacy and access to independent complaints procedures. The children’s rights scheme in Wales has a wealth of information in this regard. It is a helpful guide, but it also serves as the basis on which Wales continues to develop and expand child-friendly mechanisms. I think that it is worth considering following it in Scotland.
Elin Saga Kjørholt
I have few good examples to contribute, so I will give the floor to someone else.
Thank you. I am grateful to the witnesses for their answers.
Fulton MacGregor (Coatbridge and Chryston) (SNP)
I have a few topics to go through. Not all panel members need to answer every question. If you feel that issues have already been covered, please say so, as it will help us to get through everything.
First, following on from my colleague Mary Fee’s line of questioning, I want to ask about who can bring court proceedings. Section 10 of the bill specifically empowers the children’s commissioner to raise court proceedings in respect of the duty on public authorities and, more generally, section 7 of the bill says that an individual or organisation may raise court proceedings in respect of the duty if they can demonstrate sufficient interest.
Are you happy with the overall approach, including the Government’s policy intention in the wording of sections 7 and 10? I suppose that it is best for us to hear first from Bruce Adamson. I assume that he welcomes this aspect of the bill.
Your assumption is absolutely correct. On section 7, last week’s witnesses covered really well how sufficient interest works and the growing understanding of the opportunities there, so I will focus in my comments on the powers of my office, section 10, and section 22, on strike-down and incompatibility declarators, which allows for intervention in those cases.
This is a really important power. Since I took office in 2017, I have restructured and built expertise on the matter in the office, within existing rules. We have made a number of interventions at the Court of Session and indeed recently at the Supreme Court, just relying on the rules of court. However, to have the power set out specifically in the bill is really useful. It is really important in relation to what we can do to ensure that the court is assisted in taking cases.09:45
The additional power to take cases in my name, as commissioner, is a really important addition as it will allow us to take forward strategic issues. I referred to the example that Janys Scott gave last week to do with physical punishment in Northern Ireland, where they were not allowed to take a case because they did not have the power. I very much welcome the work that the committee did to secure protection from assault for the purpose of physical punishment in Scotland, which came into force recently. That is very much the type of thing that I would look to use strategically.
It is important to put the matter in context. My office does not have a complaints-handling power. Rather, we have the great work that the SPSO, Rosemary Agnew, and her team do, and judicial systems. We do not have a children’s ombudsperson model. My job is not to deal with complaints, but rather to look at how we can use strategic litigation. That links back to some points that were made earlier. This is not a substitute for a child-friendly complaints system or child-friendly justice. There is still a lot more need for support, legal aid and mechanisms for individual remedy, and we should remember the important role that civil society plays. I point to the great examples of Clan Childlaw and JustRight Scotland, which have been leading the way in showing how strategic litigation can work.
An important point is that litigation is a really poor way to address rights violations, so it should be a last resort. The bill’s focus on ensuring that rights are respected, protected and fulfilled and on preventing breaches is important, because it means that we should be able to prevent litigation as much as possible. The experience in other countries has been that litigation is necessary only when other things are not working and there has been a failure. Through the broader provisions of the bill, we will look to make sure that breaches do not happen. Under that preventative approach, through all the things that we have talked about, we will look to use the measures of implementation to avoid the need to take cases. However, it is essential that the powers are there to intervene in cases that are before the court and to take cases in our own right where there is a strategic need to do so. I warmly welcome the powers.
On section 7, I refer to the evidence that has already been given on the significant interest test.
My short answer to the question is that we are happy with the approach. It is important to consider who may raise proceedings under the bill, particularly because of all the barriers that children and young people face in raising challenges, which we talked about earlier. It is critical that the Children and Young People’s Commissioner Scotland has the power to raise proceedings under the eventual act and has a central role, as Bruce Adamson said, in promoting the rights but also in enforcing them. We fully support that dual functionality.
We want there to be inclusive and broad rules of standing that will allow children and their representatives or advocates and those who seek to advance children’s rights to raise actions as appropriate. That would include civil society organisations, multiparty litigation and so on. As you heard last week, it is critical that the victim test that is required under the Human Rights Act 1998, which is quite restrictive in practice, has not been carried into the bill. That is welcome. Instead, we have the usual rules for standing for judicial review actions and the “sufficient interest” test.
Last week’s witnesses spoke to the evolving understanding post the AXA case, where the rules of standing were expanded to include those who are acting with genuine concern for the public interest, even in the absence of a private right or interest of their own. That is welcome, as it allows for a more expansive approach to standing, which will allow children and young people and those who represent their interests to raise actions in the courts in a way that protects both individual rights and the broader public interest.
I note that Rosemary Agnew does not want to comment, as she feels that the subject has been covered. Dragan, do you want to comment?
UNICEF is very happy with this section of the bill. We are delighted that the children’s commissioner’s powers are being strengthened. In 2016, the UN Committee on the Rights of the Child put forward a recommendation to the Scottish Government that the commissioner’s powers should be strengthened, that they should include a power to deal with individual complaints and, importantly, that financial and human resources should be made available to the commissioner to enable him to perform those functions. We hope that the enhanced role for the commissioner under the bill will be fully supported by the availability of all resources that are needed.
Elin, do you have anything to contribute on the question?
Elin Saga Kjørholt
We do not have such powers in Norway, and what we see is that it is quite coincidental which cases are brought to court. I think that giving child rights advocates the power to bring cases to court will help to get the right cases to court decisions—strong cases, and relevant ones for children’s rights. I think that that will be very good.
The Deputy Convener
Fulton, will you roll your final two questions together? Alison Harris is still to ask her questions and we have only 15 minutes left for the current panel.
I have a question on the time limits for court proceedings. I should probably have rolled that into my previous question. If you do not mind, deputy convener, I will ask some of the witnesses to give brief answers on that. Is that okay?
The Deputy Convener
Yes, by all means. I am just asking you to conflate your other two questions.
I will do so.
On the time limits for bringing court proceedings, the submissions that we have received offer mixed views on whether it is correct to exclude the period when a young person is under 18 when the time limits for raising court proceedings are calculated under section 7. Do any of the witnesses want to comment on that and the overall approach to time limits? We need to have views on that on the record.
I strongly support the approach that is being taken. Where children’s rights have been abused, the time when they are still a child should not be counted. I think that the bill does well in that regard.
The argument is being made that that might place challenges on public authorities to address those matters, but that needs to be set within the context of the balance of power. We know that justice is very hard for children and young people to come by and, often, they may not even know that a rights breach has happened until they are older. The approach in the bill is absolutely the right one.
If there are challenges that have to be overcome, that should be done while favouring children’s rights and moving to an effective remedy. I am pleased with the provisions on time limits, which exclude any time when a child is still a child before the clock starts ticking.
We fully agree with the view that that the children’s commissioner has expressed. We welcome the proposal that children be excluded from the requirement that cases be raised within a year, with the clock instead commencing when they turn 18. As we have discussed, there are so many hurdles to a child or young person, in the first instance, recognising any potential violation that has occurred and then accessing the necessary supports and resources to bring any sort of challenge, so that is an entirely sensible approach and we support it.
The Deputy Convener
We have got some decent views on that on the record. We will go back to Fulton MacGregor, as I am keen to get all the questions in.
I ask the panel to bear with me, as I will roll together the three questions under the next heading. Under normal circumstances, I would have preferred to ask three separate questions, or at least two.
As you know, the bill requires the Scottish ministers to publish a children’s rights scheme, to report on compliance with the UNCRC requirements and to review and report on it annually. What are your views on that provision? We have had some suggestions that the language in the bill could be stronger. How do you feel about that?
My second question is related to that. Should the scheme have a clear commencement date? We heard pretty strong views on that last week.
My final question is about children’s rights and wellbeing impact assessments. I would like to hear your views on the legal duty on Scottish ministers to prepare such assessments for legislation and decisions of a strategic nature. To what extent should ministers have discretion on that? I would appreciate your views on that. I am sorry that I had to ask those questions quickly. I hope that you will be able to answer each of them as you see fit.
The Deputy Convener
I note that Rosemary Agnew has posted in the chat that she also supports the views that Bruce Adamson expressed on the previous question.
Those were three really big questions. I am aware of the time so, again, I will take the opportunity to write to you with further information.
It is important that we have commencement on the face of the bill. Tomorrow will be the 31st anniversary of the convention, and children have been waiting a very long time for this. Public authorities have already had the obligations for a long time via state responsibility, and they have had specific duties since the 2014 act. I note that the Convention of Scottish Local Authorities has pointed in its evidence to the great work and knowledge that already exists on children’s rights and the human rights agenda, so there is no need to delay.
I favour immediate commencement being put into the bill, because there is no justification for delaying. I am pleased that we have a really strong bill and we can improve it through the parliamentary process, but rights need to be real.
Scotland’s first children’s commissioner, Kathleen Marshall, raised the issue when the office was created back in 2003 and 2004, and those who were children then are now adults. The 2017 Scottish Youth Parliament campaign was called “right here, right now” for a reason. Children have waited for long enough. Six months may not seem a long time to adults, but we should think about it from the point of view of children.
Just this week, I received an amazing video, which I think is also being sent to the committee, from Holy Cross primary school. One of the strong things that the children talk about is how excited they are about the bill, but it needs to be in force. One of my young advisers said that, if the bill is passed and not commenced immediately, it will confuse children and young people as to whether their protections exist or not. My very strong view is that commencement needs to be as soon as possible. I would favour immediate commencement, but there should be no further delay. Children have waited long enough.
I think that the children’s rights scheme obligation can be strengthened. Some good examples have been given in this session and in the previous one about some of the things that we need to see in it, particularly on child-friendly justice, but we have commented extensively on that already.
Children’s rights impact assessments were the theme of the European Network of Ombudspersons for Children’s thematic work for the past year. That culminated in a three-day conference that we have just hosted on children’s rights impact assessments—via Zoom, unfortunately, and not in Edinburgh. We therefore have a high level of knowledge of the situation across the Council of Europe area. We can make available ENOC’s position statement and the common framework of reference that was developed, which we will be promoting with Government and public bodies.
Impact assessments are a vital tool in ensuring that decisions are made effectively, but I think that it is worth noting in the brief time that we have available that the experience across Europe is incredibly variable. One of the concerns from some of the countries that have made impact assessment an obligation for all levels of decision making is that there is a risk of straying into tokenism and bureaucracy. The key to effective impact assessments is their quality, so training and support need to be in place.
If there is an enforceable legal obligation on people, it places a strong emphasis on making sure that decisions are made effectively, and children’s rights impact assessments are a powerful way of doing that. We strongly support them. It is important that there is a legal obligation on Scottish ministers. Covid has shown us some really good examples of how poor decisions can be made if there is a lack of impact assessments. We strongly support them and the way in which they have been drafted into the bill. Again, we can expand on that in writing to the committee.10:00
I emphasise that the requirement for the scheme and for reporting on both steps that have been taken and plans is an important means of ensuring that children’s rights are advanced in practice, and we welcome it as an innovation from the Human Rights Act 1998 model.
I will briefly mention two issues in relation to the scheme. First, section 11(3) sets out what “may” be included in the scheme. To amend that “may” to a “must” would be most welcome as it would ensure that the issues really are looked at in practice.
Secondly—I think that I have talked about this before—we recommend that the list of what is included in the scheme be expanded. It could usefully include, for example, arrangements by Scottish ministers to improve children and young people’s access to justice through child-friendly complaints mechanisms, advocacy and representation. The scheme currently talks about awareness raising and promotion of children’s rights. We believe that it should also mention the advancing of children’s rights, education and training as another important element. Those are two brief comments about the scheme.
It is important that the bill has a specified commencement date that is as soon as is practicable, rather than it being left to ministers’ discretion. We recognise that duty bearers will look for a preparation period, but the UNCRC has been part of our international obligations for a long time and public authorities had a duty placed on them under the 2014 act, which put them in a good place to prepare for the bill. The experience of Covid-19 has arguably accelerated the need and the case for advancing the obligations in law sooner rather than later, and for systematically building that into decision making. That case has never been made clearer than by the experience over the past months.
I will not add anything to the discussion about commencement, but I would like to add a point about impact assessments, which is to do with implementation.
Impact assessments are a great way of ensuring that there is build-in in policy making and decision making from the start. The Scottish Public Services Ombudsman is a public body, and I already do a data protection impact analysis and equalities impact analyses. To pick up on Bruce Adamson’s point, we need to be very careful that we do not introduce another silo of an impact analysis that ends up considering things that are divorced and separate from each other. We need to ensure that the approach is not too bureaucratic, that there is support and guidance about how to do the work effectively, and that resources are available for public bodies so that we have a meaningful approach rather than a tick-list approach.
On commencement, we are very happy with the Scottish Government’s commitment that the act will enter into force as soon as possible. As an intergovernmental organisation, UNICEF does not tell Governments or Parliaments what they should specifically do. Every country takes its own path according to its tradition and system. In Iceland, for instance, the incorporation act went into force immediately but, in Sweden, there was a delay of a year and a half for entry into force to allow duty bearers—especially the judiciary and local authorities—to prepare for implementation. I hope that the Scottish Parliament will find a consensus with all stakeholders.
We think that the children’s rights scheme can be strengthened in two ways. First, the current formulation that the Scottish ministers “may” include arrangements should be strengthened, perhaps with the word “should” or “shall”. Secondly, we think that the list of issues to be included in, or arrangements to be added to, the children’s rights scheme can be and should be expanded.
We are delighted to see a mandatory children’s rights impact assessment for the Scottish Government. That is a point at which the incorporation bill goes further than anywhere else in the world does.
An area for improvement relates to strategic decisions. We think that the approach is a bit vague, broad and open to a subjective, discretionary assessment, and we would recommend—apologies for this—using the formulation in the children’s rights impact assessment process and template used by the European Commission, which was developed by UNICEF.
The Deputy Convener
I am very sorry to hurry you, but we have more questions and only five minutes or so left for the whole panel. If you could draw your remarks to a close, that would be very helpful.
My suggestion is that a children’s rights impact assessment must be done for every decision that has a direct or indirect impact on children. Thank you.
The Deputy Convener
I apologise for cutting you off.
Elin Saga Kjørholt
I can leave my comments on that, as the issues have been covered.
Alison Harris (Central Scotland) (Con)
Good morning, panel. I want to discuss incompatible legislation. Part 4 of the bill sets out the significant powers in respect of incompatible legislation. Do you want to make any comments on part 4 of the bill? We are particularly interested in your views on the approach to the courts’ declaratory powers and the reporting duty that is set out in section 23.
We think that part 4 is useful. In particular, we think that the strike-down declarators, section 19, which is on the interpretation of legislation and allows courts to read down incompatible parts of legislation—that is very useful—and the incompatibility declarators are useful. We understand the Government’s reasoning on the powers that are available to the devolved Parliament and the restrictions on it, although there is, obviously, a much stronger power to strike down.
The ministerial reporting is really important, because we see, particularly from experience in international fora such as the European Court of Human Rights, that the execution of judgments and implementation can be very slow. The reporting duty is therefore very useful. Again, I refer to section 22, which requires my office to be notified when such proceedings are taking place and provides for the opportunity to intervene in those cases. That is a really important additional power for us, so we strongly support what is there, with the understanding that the argument is that that is as far as we can go within devolved powers. We would like to see strike-down powers in relation to both past and future legislation.
The approach that is taken in the bill to the strike-down declarator for incompatible provisions that predate the act and the incompatibility declarator for incompatible provisions that post-date the act is most interesting. In a Human Rights Act 1998 context, a declaration of incompatibility has been found not to be an effective remedy where the incompatible provisions effectively remained on the statute book and no action has been taken to secure compatibility.
We understand the reasons for the incompatibility declarator, which is to ensure that we remain within the competence of the Parliament. In an ECHR context, to meet the threshold of an effective remedy, there needs to be a long-standing and established practice of giving effect to the court’s declaration of incompatibility. It needs to be acted on effectively to remedy the incompatible legislation.
What is really different and interesting about the bill is that it is supported by further measures to secure compliance in practice to ensure that an effective remedy is provided for through the impact assessment, the statements on compatibility, the requirement of the ministers’ report and the remedial power. We think that, viewed as a whole in conjunction with those other measures, that approach goes some way to providing for an effective remedy under the legislation, subject to the comments that I made earlier about the need to evolve remedies in our courts and look at more structural remedies to deal with those issues of a systemic nature that affect multiple people.
[Inaudible.]—comment on reporting. It is absolutely critical that there is reporting, but we need to be very clear about what we expect to see in the reporting mechanism and to focus on not just what we have done but what we have learned.
We are very happy with that part of the bill, and we think that the measures that are envisaged will ensure that future legislation is in line with the convention. It is vital that the review of existing legislation starts as soon as possible. Scotland can expect the UN Committee on the Rights of the Child to ask the Scottish Government in February next year when it plans to start conducting a review of legislation following the incorporation. That has happened in Norway and Sweden. As a result, a number of existing pieces of legislation have been amended to make sure that they are in line with the Convention on the Rights of the Child.
The Deputy Convener
Does Elin Saga Kjørholt want to comment?
Elin Saga Kjørholt
[Inaudible.]—perfectly, so I have no further comments.
I want to ask about resources and costs. Do you have any comments to make on the potential impact on resources and the cost of the bill to your organisation, to public authorities generally, and to the third sector?
I am aware of the time.
As others have commented, the experience in other countries is that there has not been a significant need for additional resources. I point to article 4 of the convention, which focuses on using available resources to the maximum extent possible. I also strongly refer the committee to, and endorse the work that the Scottish Human Rights Commission has been doing on, human rights-based budgeting. There is a lot of work on children’s rights-based budgeting that shows that taking a rights-based approach leads to better and more cost-effective decision making in the long term. Although it is important that there is proper resourcing to make sure that awareness is raised, that is already a function and an obligation of the state. We should be spending that money anyway, even if we did not incorporate, and that is money very well spent. The obligation to make sure that people are trained and understand and that children are educated on their rights pre-exists the bill, and the money that is spent on that is very well spent. More focus on human rights-based budgeting and children’s rights-based budgeting is very useful.
There are additional powers for my office in the bill. We set that very much within our general duty to safeguard and promote the rights of children and young people. I could happily talk to the committee about how, per capita, those in my organisation are funded a lot lower than colleagues in Northern Ireland and Wales are, but that is perhaps a discussion for another time.
Our approach to the use of our powers under the bill is very much the same as that which we have taken so far, which is to use a strategic approach. I foresee that, if there was consistent failure by public authorities, the cost of using the litigation powers would increase over time, but my hope is that using the mechanisms in the bill to deliver change will be very cost effective and save money in the long run. If we end up spending money on litigation, something will have gone very wrong in the way in which the bill and the obligations that sit underneath it have been implemented.
The Deputy Convener
If Dragan Nastic and Elin Saga Kjørholt are okay with this suggestion, I will ask only Kavita Chetty and Rosemary Agnew to answer this question, because it is specifically about Scottish organisations’ resources for implementing the measures. Kavita Chetty, in a nutshell, does the Scottish Human Rights Commission need more resources for the bill?10:15
In a nutshell, as the bill stands, we would not need more resources, particularly to implement it. The Children and Young People’s Commissioner Scotland would be resourced through Parliament to do that.
I endorse the children’s commissioner’s answer. On public bodies and resourcing, it is really important to understand from a human rights law perspective the underlying obligations that public bodies are being asked to fulfil. They can be assured that the framework to a large degree fits with their existing priority-setting, budgeting and policy-making processes. It is about building children’s rights and considerations into those processes.
I am sorry—I am aware that we are running out of time.
I have a general comment to make. I do not think that anything ever comes completely for free. We should encourage reuse, use current resources well and encourage creative solutions. In the early days, the greatest impact for my organisation is likely to be in giving support and guidance and in developing complaint processes that public bodies can deliver and that will not—I hope—end up with the requirement to go to an ombudsman or a court.
The Deputy Convener
Does Alison Harris have anything further to ask about? Unfortunately, we really have to end this discussion.
I had a brief question about going further with the bill, but I am happy to leave things as they are.
The Deputy Convener
We will draw the session to a close, if that is okay.
I thank the witnesses for their comments. The session has been extremely helpful. I give particular thanks to our international visitors.
I will suspend the meeting briefly so that the panels can change. We will reconvene as soon as everyone is in place.10:17 Meeting suspended.
10:18 On resuming—
The Deputy Convener
I welcome the witnesses on our second panel: Eddie Follan, chief officer, children and young people, Convention of Scottish Local Authorities; Assistant Chief Constable Gary Ritchie, partnership prevention and community wellbeing, Police Scotland; Alistair Hogg, head of practice and policy, Scottish Children’s Reporter Administration; and Mike Burns, assistant chief officer for children’s services and chief social work officer, Glasgow city health and social care partnership. Thank you for being here this morning.
Unfortunately, our time is limited. We are hoping to wrap up by about 25 to 12, so I ask questioners and panellists to be succinct in their questions and answers. When you are asked a question, please pause briefly so that the microphone and camera can pick you up.
I have two questions, but I am happy to roll them into one general opening question. There is strong support for direct incorporation of the UNCRC into Scots law. What do you think of the Scottish Government’s general approach in the bill, and what guidance will public authorities need to ensure that they meet the duties that are set out in the bill? I will go to Eddie Follan first.
Eddie Follan (Convention of Scottish Local Authorities)
Thank you, convener. The first general point is that we very much welcome the bill and the principles in it. We have discussed it extensively with COSLA’s education, children and young people thematic board, which is made up of the 32 conveners of education and children’s services in Scotland, and there is full agreement with and support for the bill. We want to make sure that children’s rights are realised across public services.
We have also had extensive discussions with local authority partners, including chief executives through the Society of Local Authority Chief Executives and Senior Managers, the Association of Directors of Education in Scotland, Social Work Scotland and the Scottish councils equality network.
In general, we very much support the principles of the bill and the approach that it takes. There are challenges, and we can go into some of those. The local government workforce is some 250,000 people strong, so there is a challenge there, but it is one that we are certainly up for taking on.
We were clear in our submission that we need guidance that is developed in partnership with us, that builds on best practice and that looks at what is in place and works at the moment. We also need to make sure that that guidance is fully consulted on and fully informed by the views of children and young people.
It would also be useful to make sure that the guidance makes clear where the convention sits within the wider legislative framework in Scotland. There is a lot going on at the moment, with the Age of Criminal Responsibility (Scotland) Act 2019, the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill, as well as this bill on incorporation of the UNCRC. It is a complex landscape, so the guidance needs to be clear and strong.
Having consulted our partners and Scottish Local Authority Lawyers and Administrators, we think that, if necessary, there is also a case for the guidance to be statutory. There is a view in local government that that would be helpful.
I hope that that was concise enough.
The Deputy Convener
It was—I am very grateful to you. ACC Ritchie is next.
Assistant Chief Constable Gary Ritchie (Police Scotland)
Good morning, and thanks very much for the opportunity to participate.
Police Scotland is, of course, fully supportive of the principles behind the bill. As you know, Police Scotland has a children and young people plan. We have set up a short-life working group to provide direction and leadership on the bill throughout the organisation, even at this early stage. We already have other working groups in place for similar legislation—the Children (Equal Protection from Assault) (Scotland) Act 2019 and the Age of Criminal Responsibility (Scotland) Act 2019, which Mr Follan mentioned—so we are fully committed, fully positioned and ready to progress, as we are required to be.
Our asks are very similar to those of Mr Follan. As we progress, detailed guidance will be important in respect of expectations. A consistent communications plan is needed. As we have seen recently in the engagement with Government on the coronavirus legislation and linked legislative instruments, there is value in the strong collaboration that has developed around the bill, which has helped to drive the understanding of implications, obstacles and practicalities, all of which are important for all sides to understand. It is really important that that dialogue continues and that Police Scotland remains fully represented should any governance structures be put in place
The Deputy Convener
Thank you very much. I will bring in Alistair Hogg.
Alistair Hogg (Scottish Children's Reporter Administration)
Good morning, and thank you for inviting us to give evidence today. I represent Scotland Children’s Reporter Administration, which very much welcomes and supports the bill. As an organisation, we are of course very focused on children’s rights—they are core to our business, as are the protection of children and upholding their rights.
We have always considered that we have a duty to comply with the UNCRC, and we always strive to do so. In incorporating all of the UNCRC, the bill raises the prominence of the convention and offers a real opportunity to bring about the cultural change that is required to promote and enshrine children’s rights in every part of Scottish life. We are very supportive of the bill and what it is trying to achieve.
Key to driving that cultural change forward is the opportunity for enforcement rights that exists within the bill. I am not necessarily saying that we hope that those rights will have to be used all that often, but having them in the bill is absolutely key to driving and motivating change.
On our asks, as the previous two contributors have indicated, any guidance documents would be very welcome. Although observing children’s rights is core to our business, there is always a lot to learn and understand. One of our duties—we have already started to do this—will be to consider all the work that we currently do and all our policies, procedures and processes to make sure that they are compliant with the UNCRC. The provision of a toolkit or an audit framework would help us to undertake that work to the full extent.
The Deputy Convener
Thank you very much. I will bring in our final witness, Mike Burns.
Mike Burns (Glasgow City Health and Social Care Partnership)
Thank you, convener. Good morning to the committee and to the other witnesses.
I certainly echo the points that have been very eloquently made. In a sense, the bill builds on the bedrock of the Children (Scotland) Act 1995, which encapsulates quite a number of the UNCRC’s articles, and the getting it right for every child policy direction, which we have been implementing in Scotland since 2006. It is important for us as a society to continue to promote, protect and develop children’s rights. I think—[Inaudible.]—to welcome that, and I echo the point about how that is stretched across the public sector and statutory organisations, which is important.
The point about guidance is significant, because there is a need to consider alignment, co-ordination and cohesion. The bill very helpfully outlines all the legislation that continues to impact on children’s services, and I think that there is a need for significant co-ordination in relation to the guidance. I do not think that it is sufficient just for guidance to come out separately—it has to be cohesive.
The Deputy Convener
Before I bring in Mary Fee, I have a question for ACC Ritchie. We know that the Age of Criminal Responsibility (Scotland) Act 2019, which you referred to, still has not been implemented. We are told by the Scottish Government that that is in part down to Police Scotland’s need for training and understanding. Could you explain where the blockage is and whether there might be a similar blockage with the implementation of the bill?
Assistant Chief Constable Ritchie
I think that the issue is the scope and challenge of implementation and the need to understand what that means in terms of the range of legislation that we have to consider daily. When police officers deal with a child as part of their duties—whether the child is a potential victim or a potential offender—they may need to consider five or six pieces of legislation that define “child” in various ways, with the age being between 16 and 18. That is one element.
The second element is about the practical implementation of the legislation. There are numerous systems across Police Scotland, as you will understand. I am not a technical person, but many of those systems have default settings that trigger other processes, and they are all set up for a child being under the age of 16. If that is raised to 18, all of the systems will need to be adjusted, as will our policies, processes and operational practices.
The legislation will bring significant change. I would hesitate to say that there is a blockage. As I say, we are fully committed to ensuring that the legislation is implemented in the intended manner—10:30
The Deputy Convener
I am sorry to interrupt you, but the legislation will increase the age of criminal responsibility from eight to 12—it is not about the confusion as to whether somebody is an adult at 16 or 18. Do you have any line of sight on when that legislation will come in?
Assistant Chief Constable Ritchie
Another functional area is working on that at the moment. I am sorry, I—[Inaudible.]
The Deputy Convener
We will move on, if that is okay. We can speak to other colleagues in Police Scotland about that specific point. I am sorry to buttonhole you on that.
Good morning. I have two questions for the panel. The first is on section 4 of the bill, on the interpretation of the UNCRC requirements. Does the panel think that that section should be expanded to take account of general comments and concluding observations or any other opinion on international human rights treaties? Would there be any unintended consequences if the bill were to be amended in that way?
Good morning, Ms Fee. To be perfectly honest, we do not have a strong view on that. I might have to ask other colleagues about the issue.
I think that anything that strengthens the bill would be welcomed by local government. We have been focused on the higher level—the resources issue and making sure that the guidance is strong. I do not want to mislead you by giving a false steer on what we think, but certainly if something would strengthen the bill and would be in the best interests of children and young people, I am sure that my colleagues would support it. My colleague Mike Burns may have another view.
The Deputy Convener
My apologies—I have had some technical issues with wi-fi drop-outs, so forgive me if I sound rusty. ACC Ritchie, could you answer Mary Fee’s question, please?
Assistant Chief Constable Ritchie
My answer is similar to Mr Follan’s. I do not know that it is for us to comment on the issue, other than to say that I think that you get the best legislation from the widest consultation.
I watched the earlier session, which gave the committee rich information on the question; you also got further information from last week’s meeting. From my perspective, I think that it would be helpful for courts and tribunals to have access to any guidance or information that comes from those sources. I align myself with Janys Scott’s comment last week that all of that information would enrich consideration of the issue at hand, although it would not be binding on a court or tribunal. That is an important point: if the courts and tribunals were to be bound by those sources, that would greatly increase complexity and influence. However, I think that it would be helpful to be able to consider them.
It is a very legalistic and technical issue. I do not have much detail to add to the debate, other than to comment on the promotion of the values. The values have to challenge the professionals who work in this arena. That is about enacting not just the law but the spirit of the law in the everyday interactions that we have with children. From that perspective, it is about the promotion of that approach.
My second question is on the definition of a public authority. If panel members listened to the earlier session, they will know that there was a fairly lengthy discussion about what the definition of a public authority should be. I am keen to hear your view on whether that definition needs to be changed to include some of the private sector bodies that carry out public functions.
Again, in consultation with our members, we are content with the definition of public bodies as it stands. However, there are clearly issues with the bodies that deliver those functions. I was not able to listen to the first panel, but I know that there are a lot of complexities around how it would be done. It is also an issue that may be addressed in guidance on the legal duties of public bodies as they stand. COSLA is comfortable with the legislation as it stands for public bodies, but we are open to a discussion on how it could be extended, if that helps.
That is helpful. Thank you.
Assistant Chief Constable Ritchie
I am in danger of just saying what has been said for every answer. The purpose of the bill is to effect a cultural change. I am probably straying into a personal view here, but I think that, if we are going to have cultural change, accountability should be as wide as possible. It is not for me to say whether that is achieved by widening the definition of public bodies.
The Deputy Convener
Thank you. There is no obligation on witnesses to answer any of the questions.
In previous sessions, there was a question—I think that it has been cleared up, but I want to make the point absolutely clear—about whether children’s hearings would be considered to be public authorities.
Yes, there was.
I can speak on behalf of my organisation in saying that we have absolutely no doubt that we are a public authority and would be covered by the bill. I am pretty confident in saying that our close partner, Children’s Hearings Scotland, would have a similar view.
On the wider issue of the definition of a public authority, the area that was explored was private providers and privatised services and so on. There was a very good submission earlier—I think it was from Rosemary Agnew—suggesting that, if you were carrying out a public function, you should be covered by the expectation to observe the UNCRC. That is an approach that the SCRA certainly supports.
If you are content with the definition, do you think that it would be helpful to you if there were almost an explanatory note listing who a public authority would be?
Such a note can sometimes be helpful, because it can remove any doubt about areas in which there is doubt. I suppose that there could be a disadvantage in that there would have to be an exhaustive list and it would continually need to be update and reviewed. There could be an advantage in having increased clarity.
Thank you. That is helpful.
Similar to Mr Fallon, we are content with where the law sits at the moment. Similar to the points that have been raised, I think that, if the bill is about promoting these rights, we need to look at promoting them across society and communities, and also among parents, as an evolution. You want to get the public bodies right first, where they are holding statutory duties, but also allow the legislation to evolve into those other areas, as it should do, where hopefully, by best practice, the points that have been made earlier—[Inaudible.]—can meet and understand the philosophy around the promotion of the child’s rights and the child’s views. We are content at this stage.
The Deputy Convener
Mary Fee, do you have more questions?
No, thank you, convener.
The Deputy Convener
In that case, I will bring in Fulton MacGregor.
Does Alison Harris want to come in here to finish off this line of questioning?
The Deputy Convener
My apologies. Alison Harris, you are welcome to come in, and I will bring you back in at the end as well.
Thank you, convener.
Would the witnesses like to comment on the time limit for bringing court proceedings, and will an extended timeline be an onerous burden of record keeping, as is suggested by the Faculty of Advocates?
Again, I am in danger of saying that that is not an issue that we have considered in detail. I go back to our position on support for the bill. If our partners in local government are very supportive of the bill as it stands, it is not an issue that I want to comment on in any detail.
Assistant Chief Constable Ritchie
To be brief, it is not something that we would necessarily comment on.
There are possibly two elements to the question, but I can clarify that. I know that there was quite a bit of discussion in previous sessions about the timeline and whether you count in any calculation of that timeline the time up to the age of 18. Is that part of what you are asking, or are you asking just about the record keeping for that?
No, it is part of it.
Thank you. As I said earlier, I observed the previous sessions, in which some very interesting views were put forward. A very clear view was expressed earlier from the children’s commissioner about that and I absolutely agree with those sentiments.
However, I also understand the point that Janys Scott made in a session last week, which was simply explaining the practicality of that. Although of course it is unfair and not right to constrain a child with similar time limits to those of adults, the remedy that is being sought may require something to be done quicker than that. There is a practical impact involved but, on balance, it is the right thing to do with those timelines.
It is an interesting question about maintaining of records. Our organisation has a retention policy that allows us, or expects us, to delete our records once the young person reaches the age of 18 unless there is an exceptional reason why we should hold on to those records. If there was a timeline that went up to a year after their 18th birthday, that would have the implication for us that we would need to hold records until they reached the age of 19 and potentially longer if there were on-going proceedings.10:45
I concur with the earlier evidence that you heard about a very reflective and supportive approach to the time limits and the time bar. I think that that absolutely makes sense, particularly when you are dealing with children for whom there might be a need for redress or a need from childhood trauma to take account of that.
I go back to the issue about the Children (Scotland) Act 1995. Legislation since has strengthened—[Inaudible.]. There may be a challenge with the quality of record keeping. In looking at how we enact children’s rights, information technology systems for recording across Scotland require considerable resource. In a small country such as ours, a significant decree of consistency would be helpful rather than the variations that we have at the moment.
There are well-accepted record retention practices that we adhere to. It is about holding records on adoption, fostering and looked-after children for decades. Even now, we have a considerable number of people coming back for redress. It is something that we need to promote as part of this on the record keeping, but the record keeping then becomes critical in capturing the view of the child, the best interests of the child and the professional decisions that are taken on them. It is a helpful question, which raises the issue of resources.
I have a couple of questions on part 3 of the bill. First, what is your view on the provision for the Scottish ministers to prepare a children’s rights scheme, and could you comment on the suggestion that we have heard that the language in the bill could be stronger? I want to hear any thoughts on that. Is there anything that should be added to the contents of the scheme? In this area, could I ask the panel, as I asked the previous panel, to comment about the scheme having a clear commencement date?
Thank you, Mr MacGregor. I caught this bit in the previous panel and I think the duty to—[Inaudible.]—on the scheme is welcome. Anything that we can do to strengthen that is welcome as well. Our view from local government is that that is necessary. We know that it will be something that would be valued by children and young people.
We probably differ a bit from the children’s commissioner on the commencement date. We certainly welcome the three-year implementation period, but we need to think about when is the right time to commence. As I said earlier, we have a workforce of some 250,000 people in local government, and there is the wider public workforce beyond that. We need to be focused on building capacity through training and making sure that everybody is aware of the legislation and their responsibilities under it.
We have had long discussions about this and there is a real awareness of children’s rights in children’s services and in education. Children’s rights are well embedded in those services through GIRFEC and have been for many years, and there is a lot of good practice across local authorities. It is fair to say, and we recognise, that there may be less awareness of that in other areas of the workforce, but there is some really good practice. In North Ayrshire, there has been some amazing work on embedding children’s rights across the workforce.
In a long roundabout way, what I am trying to say is that we need to be cautious about commencement and bringing this in right away. We need to keep focused on implementation and make sure we get it right rather than rush to a commencement date. I understand what Bruce Adamson was saying about needing to do this now, but we have challenges. There is no doubt about that. We have challenges in making sure that the workforce is fully aware of what they have to do. I would be cautious about commencement right away, but let us focus on implementation and getting that right.
The Deputy Convener
Before I bring in ACC Ritchie I would like to push back on that answer. We heard from the previous panel that local authorities and public bodies are required—they have a legal duty—to have awareness of the UNCRC. I want to know why, given that they have had that duty for six years, it feels from your answer as though we are at base camp in terms of getting everyone ready to understand what incorporation means. Surely, awareness exists through that duty having permeated through every local authority and public body in the country already.
That is a fair point. The feedback that we hear is certainly that there is awareness, but I think that we can always do more. Once we have a system, or remedy, through the bill, we do not want it to be dragged in right away; we do not want to be in adversarial situations straight away, but to make sure that everybody knows what their responsibilities are.
We are obviously living in very challenging times. Public bodies have been under a fair amount of pressure, through local authorities responding to Covid-19 and the pandemic. It is a challenging time for local government—there is no doubt about that—and it is a challenging time for everybody, including children and young people and families.
The discussions with our local government partners have been about making sure that we get the legislation in and that we get it right. Let us not rush right away to setting a commencement date for as soon as the bill is passed. That is in no way to say that we should not commence it as soon as possible.
The Deputy Convener
Thank you for that. Obviously, commencement is not full implementation. Commencement starts the implementation—[Inaudible.]
I will move on. I bring in ACC Ritchie to answer Fulton MacGregor’s question.
Assistant Chief Constable Ritchie
Again, I will give a similar response. Going back to what I said at the start, it is important to have guidance on and demonstration of what will be required. The commitment from Government, through the children’s rights scheme, will be helpful in demonstrating and building our leadership mechanisms for what we have to do internally; it gives us a good overlap, lock-in or however you want to describe it. We are fully supportive of that.
I take Eddie Follan’s comments about timescales in a constructive way. It is important that we know what the timescales are and what is expected at each stage, so that we can build and prepare our processes. Whether it is three years to commencement and another period for implementation, or three years to implementation, it is much more important that we know what the expectations are and what role we will play in response to that, and when, so that we can plan appropriately.
I know that this was not addressed to me directly, but on the deputy convener’s pushing back on the answer about the time that public services have had, it is fair to say that there has been awareness. The practical detail, of which we will gain a better understanding in the months ahead, is important for understanding how incorporation will impact on our officers and communities and what will be the resultant demand on services. That is important.
The first part of the question was about the children’s rights scheme and whether there is a need to consider strengthening it. Previous contributors suggested some areas in which it could be strengthened. The children’s rights scheme is absolutely key to the successful implementation of the bill and to what it is trying to achieve. It is important that the scheme is made as strong as it can be.
There have already been some good suggestions on how to strengthen the scheme. In respect of what might be added to the children’s rights scheme, what is already in the bill covers quite a lot and could be stretched to cover more. We have heard that a way in which it could be strengthened is in enabling children and young people to access relevant support—in particular, by enabling access to advocacy and legal aid in order to obtain legal representation. Those areas could be considered by the committee. The children’s rights scheme will absolutely be a key driver of success.
On commencement, I am probably somewhere in the middle. I completely agree with what the children’s commissioner said: children and young people, having seen the bill coming and having welcomed it, will expect that it will be commenced when it is passed. However, I can also see that many public services will require a bit of time. I totally accept the deputy convener’s point that we should already be ready; to a large extent, that is correct.
As I said earlier in my submission, the SCRA has always considered itself to be under a duty to comply with the UNCRC. We would not wish to be complacent, either in thinking that we are fully compliant or that we could not comply even further with the UNCRC. We would like to conduct a proper audit of all of our processes, functions and policies to ensure that we are there.
Eddie Follan made the good point that, in a normal time—if you can think back to what normal times were like—it would be perhaps more straightforward to consider placing a tight timescale on commencement. However, we are still in the middle of the pandemic and are trying very hard to come out of it and recover from it. So I can say, speaking for the wide range of public services that will have to comply with the duties, that there will have to be cognisance of that.
We are in favour of a commencement date being stipulated, because that will be a driver for implementation. Without one, there is the danger of unintended drift. The deputy convener mentioned an example in which there has been some drift. It is such an important bill that to allow such drift would not send a good message to children and young people.11:00
On the children’s rights scheme and language, one of the things about the independent care review that was commended was the conversion of the original “The Promise” into “The Pinky Promise”. I think that it is important to ask how the bill, even by itself, will be converted into messaging to young people.
On the commencement date, the deputy convener used the phrase “push back”. You are probably highlighting the scale of the legislation that we have been asked to absorb. Even taking the Children and Young People (Scotland) Act 2014—[Inaudible.]—certainly within my own service, our ability to get into the detail of that. I am responsible for 2,000 staff in health visiting, specialist children’s services and social work, which means that the devil is in the detail.
Also, we work in an integrated way in localities, so there has to be an opportunity for key partners—social work, education, health, the third sector, Police Scotland and SCRA—to come together to ask what the issues are. I think that three years will allow us to implement properly, on the bedrock of best practice.
Thanks to the panel for those answers. My second and final question is about children’s rights and wellbeing impact assessments. What are your views on the legal duty on the Scottish ministers to prepare assessments in developing legislation and making strategic decisions? Will you also comment on the extent to which ministers should have discretion in making strategic decisions?
We know that child rights impact assessments and impact assessments are, in general, now much more feature of service delivery that they were previously. As I said before, we can always improve, we can always get better and we can always do more on that. That duty is absolutely right and I support it. We are getting much better at doing impact assessments when we are designing services at a local level. Crucially, we are getting better at doing them with children and young people, as well. Again, however, I say that we can always do better.
I will pass on the second question and not make any comment at this stage, but I hope that my answer to the first is helpful.
Assistant Chief Constable Ritchie
I, too, will pass on the second question.
On the first question, Police Scotland has strong equality and health impact assessment processes in place. We did a bit of work earlier this year with Bruce Adamson, at the advent of the coronavirus legislation and the policies around that, on developing a process for children’s rights and practices. As you can imagine, that follows similar lines. We absolutely see the critical nature of assessments and we will be well positioned, should it become compulsory, to build that into our policies and processes.
Impact assessments are something that we, in the SCRA, have been gradually getting used to. We already have in place a significant process of equalities and human rights impact assessments for policies and new processes that we develop. We welcome the expectation around children’s rights and welfare impact assessments, and we see great benefits in their being applied whenever any new policy or law is being considered. They uncover areas that might be overlooked but which need to be considered, so we very much support them.
I recall some comments that were made in the earlier session today. The impact assessment landscape is populated at the moment with equalities impact assessments, human rights impact assessments, highlands impact assessments and other impact assessments, so it can become a complex landscape. The SCRA would like to have an overall assessment that brings in all the elements that we need to consider. Children’s rights and welfare would be absolutely central to that, so we very much support assessment.
Forgive me—I did not understand the second question, and I am not sure that I am able to answer it. Can you clarify what was being asked?
It might be that you do not feel inclined to comment, but I was asking for your thoughts on the extent to which ministers should have discretion in making strategic decisions. Should ministers have discretion in that? My question relates to some of the evidence that we took last week.
Thank you for explaining that. I will not comment on that issue, if that is okay.
The Deputy Convener
That is fine.
I concur with the comments that have been made about the need for the right impact assessment and in relation to the previous question about implementation. In Glasgow, and in the social work profession, we have made the same point as Susan Deacon: there is far too much time and attention on planning and not enough on delivery. The focus needs to be on delivery, implementation and what needs to take place in order to promote best practice. At the end of the day, the promotion of children’s rights—[Inaudible.]—by and large by adults. The issue is about how that then occurs across adult services. We need to be in a position of being able to challenge each other, so I agree with that.
On the second question, I, too, consider that that is probably not for me to comment on.
I would like to discuss resources and costs with you. Do you have any comment to make on the potential impact on resources and the cost of the bill to your organisation, to public authorities generally and to the third sector?
You will have seen from our evidence that we have concerns about the resourcing of the bill. The financial memorandum talks about a three-year implementation programme with a £2.1 million package of funding for all public bodies to accompany it, with the costs largely being for training.
I say again that there needs to be parity. We have 250,000 people working for us in local government. We cannot leave the work to children’s services, social work and education; this must also be about housing, transport and all other parts of the public sector. I am sure that colleagues in the police and in other areas would agree.
In the social sector, we are a bit concerned that we would need more support to build that capacity. We want to link the resources to capacity. However, it is tricky to put a price tag on that.
We have had some discussions with the Scottish Government on resources. We have agreed that we will keep an eye on the issue and that we will work together as we progress through the implementation period, to make sure that we are getting it right. We do not want to undermine everything that is good about the bill by not putting in the resources that will support it.
We have some concerns, but we have had some discussions with the Government and we have a commitment from it to keep talking about resources and to move forward in that way.
Assistant Chief Constable Ritchie
My answer might sound a bit negative, but I emphasise that we are absolutely committed to working with partners and with the Government to address the issues in support of implementing the bill in the most effective way.
It is difficult to say exactly what the impact will be. If I take resources and costs separately, it is difficult to say what the impact of any new legislation will be until we see the details and understand how it is taken on, how it is accepted by the public and what that does to demands on policing.
However, I think that the impact of the bill will be significant in a lot of different areas. First of all, there is the implementation of the bill itself. Depending on the extent of the legislation, we will need significant instruction for our officers. As we are talking about powers, particularly the execution of powers with children and young people, the legislation will need to be widely understood. That will take significant instruction, which might go beyond the training and information packages that we normally do for legislative change.
I see the bill as being far more complex than, for example, the Hate Crime and Public Order (Scotland) Bill. That simplifies legislation, whereas the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill, as I have mentioned before, can in many ways complicate how a police officer is expected to act and react in any given situation.
Some of the inherent tensions in the bill are about, for example, the recognition of children who are 16 or 17 years of age and have increased maturity and decision making. If we are applying some of the statutory instruments to 16-year-olds, that could create a tension. We need to understand the detail of that and the expectation on policing and on the wider legal system as to how we act. As I have said, when our officers are dealing with a child in any situation, they can be considering five or six different pieces of legislation.
So, the implementation of the bill will have a significant impact. Then, of course, there is the resulting demand. When we are dealing with cases involving children, the surrounding bureaucracy—if I can use that catch-all term—is significantly greater than when we are dealing with adults. We accept that, because we have to deal with and share information with a wider range of partners.
When we are looking at alternatives to prosecution, that brings in and perhaps addresses the question about the third sector, because, again, we have connections with partners when considering referrals and alternatives to prosecution.
The provisions will apply to a wider section of the community, so there could be quite significant resource demands. Then there is systems development. As I have mentioned that before, I will not labour the point.
In summary, the resourcing implications will obviously have a direct impact on the costs. On our reading of the financial memorandum, I do not think that all those aspects are covered at the moment. However, I do not want to be too negative. We are absolutely committed to preparing for the bill, to ensure that the impacts are adequately identified and that we are well prepared for the consequences once it is implemented.
The Deputy Convener
Thank you very much, ACC Ritchie. I call Alistair Hogg.
Can I check whether you can see and hear me?
The Deputy Convener
We can hear you but we cannot see you. Proceed with answering anyway, and hopefully we will have video soon.
On the resource issue, SCRA is probably in a slightly different position because our business is with children, young people and the most vulnerable in our society. We certainly like to think we are already compliant with UNCRC. However, as I said earlier, we are not complacent enough to think that we are fully compliant—there may be some gaps.
As I have also mentioned, we would like to have tools that would help us with an audit of our current policies, processes, procedures and so on to ensure that we are fully compliant and, if we are not, to understand where the gaps are. If there are any gaps, resources might be required to fill them. Beyond that, we would certainly be looking for access to guidance and, potentially, to training that would be helpful to us.
I think that my video is now back.11:15
The other area of potential cost lies in the enforcement rights and the ability for challenge to be taken into court. There are also the potential resource implications of meeting that challenge, should a matter get that far. We would hope that, in the vast majority of cases, court proceedings would not be required and that matters would be resolved long before that. We hope that going to court is something that does not happen often.
I mention that issue simply because, if something is of such significance that it leads to court, we know from our experience—we are involved in the courts in our daily work, sometimes to the higher courts and even to the Supreme Court—the costs that are involved in meeting those legal challenges. That is a potential cost, and it is very difficult to assess those at this stage.
I hope that that answers the question.
In relation to our concern about the potential cost and resourcing, I reinforce Eddie Follan’s words.
Again, one of the things that I reflect back is that we have been implementing getting it right for every child since—[Inaudible.]—interagency work and interagency planning. In a Glasgow context, that involves, on my part, 2,000 staff, 10,000 teachers and all the police and health staff.
To pick up the point about implementation, it is not just about training and senior managers like me saying, “We brought somebody in for the day and they were trained on it.” It is then about looking at how the training is implemented through your organisation. To pick up some of Alistair Hogg’s points, it is also about how you make sure that you are compliant with the legislation and you are promoting it. That needs to be factored into the implementation.
This is my final question. Are there any areas in which the bill should go further in order to advance the rights of children and young people?
I reiterate that we, in local government, are pretty content with the bill other than on the issues that we have raised, which are to do with resources. Notwithstanding what the deputy convener said about pushback, the view is that we should be doing this. However, there are lots of challenges, and local government and public services will have to get to grips with them quite quickly.
We are working closely with the third sector to build capacity. The Children’s Parliament has done wonderful work. We will be working alongside it and with Children in Scotland and others.
I do not think that we need to start adding things to the bill. We have also been advised by experts that this is a good piece of legislation as it stands, and we are content with that.
We have a lot to deal with. We have “The Promise” and the findings of the independent care review, and we, in local government, will be working closely with it on those issues.
We think that this is a good bit of legislation that will challenge us as it is. However, if things can be done with the bill that will improve the situation for children and young people, we will certainly look at that and hopefully be able to—[Inaudible.].
Assistant Chief Constable Ritchie
True to form, I will agree with Eddie Follan. The bill as it stands provides a step change for Scotland in the delivery of children’s rights, and we are committed to that. I think that it is effective in its intent and in its tenor. There are challenges, which we have outlined, and we understand that.
To take Eddie Follan’s point, it is not that we would not seek to add or make suggestions if we felt that that was necessary. I think that it is probably a reflection of the quality of the bill that we do not have anything to suggest or add to it.
I have a similar view. We welcome the bill’s current contents. Beyond what has already been contributed to your committee in these evidence sessions and the suggestions of enhancement, particularly in relation to the children’s rights scheme and our discussion about whether a commencement date would enhance that, I do not have any suggestions as to how it might be improved.
It is a monumental bill in what it will achieve: incorporating the UNCRC into law is a massive step. I watched with pride the contributions that you heard earlier, particularly those from the guests from other countries, about how the measure is perceived by the international community. It is commendable and, as it stands, it is a good bill. Some areas in it might be slightly improved on, but I do not think there is any major gap beyond those that have already been highlighted in your evidence sessions.
I do not have much to add to what Alistair Hogg has said—I concur with him. The issue in and around implementation is the key aspect that I would wholly promote from a practice perspective and from an operational perspective. The devil is in the detail, and it is in the delivery by adults.
The Deputy Convener
That brings us to the end of our questions. I thank the witnesses for taking part in the meeting. As I told the first panel, if you have anything you would like to follow up on, you can do so in writing, and we will publish that on the committee’s website.
I suspend the meeting briefly to allow the witnesses to leave, after which we have more business to attend to.11:23 Meeting suspended.
11:24 On resuming—
19 November 2020
Third meeting transcript
The second agenda item is our third evidence session on the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill. We have two panels of witnesses this morning. I welcome our first panel: Juliet Harris, director of Together, the Scottish Alliance for Children’s Rights; Carly Elliott, policy manager of Who Cares? Scotland; Josh Kennedy, a member of the Scottish Youth Parliament; and Kevin Kane, policy and research manager of YouthLink Scotland. Thank you for joining us.
I remind members that, if your question is for a specific witness, you should identify that witness by name. Witnesses, if you have nothing to add on a question, please do not feel that you have to speak. We have quite a lot to get through in a limited amount of time—and we are dealing with technology as well as scrutinising the bill—so I encourage everyone to keep questions and answers as succinct as possible. Please allow broadcasting staff a few moments to operate your microphone before you ask your question or provide an answer.
I will start. There is strong support for direct incorporation of the UNCRC into Scots law, and we heard last week that the bill is unique in international terms because as well as directly incorporating the UNCRC, it includes active and reactive measures. What are your views on the Scottish Government taking that approach? What are your reflections on the potential benefits or disadvantages of that approach?
Juliet Harris (Together)
Thank you for inviting me to give evidence on the bill. As you know, we have been campaigning for decades for full and direct incorporation of the UNCRC into law. As the Children and Young People’s Commissioner said, incorporating UNCRC is the number 1 thing that we can do to ensure that children’s rights are at the centre of everything that we do.
On the benefits of full and direct incorporation, I want to look back to 2013, when I gave evidence on the bill that became the Children and Young People (Scotland) Act 2014. Back then, we talked about the fact that the process of incorporation brings about a culture change in which children and young people are better recognised as rights holders. Seven years on, we are living that culture change—it is happening right now and, as committee members, you have been part of it.
It is an extremely strong bill. It has been drafted in a very inclusive way. The drafters have listened to children and young people who said that they wanted full and direct incorporation because they wanted to know that the rights in the bill were the same rights as those in the UN Convention on the Rights of the Child, which other children across the world also enjoy. From education, health and social work through to transport, policing and the environment, full and direct incorporation provides clarity that children and young people have the rights in the UNCRC. It means that those rights are not just something that we need to think about but are embedded in everything that we do.
Those are the benefits of full and direct incorporation. I do not think that there are any failures in that approach. It is what children and young people have asked for—they asked for a binding duty and for access to remedy and redress if their rights are breached, both of which are in the bill.
We will find areas where there can be improvement. Today, I would like to talk about the interpretation provisions, definition of public authorities, better access to justice and commencement. However, it is an extremely strong bill and we are living the culture change that full and direct incorporation brings.
Carly Elliott (Who Cares? Scotland)
Who Cares? Scotland strongly supports the bill, and we are incredibly excited that Scotland is in the position of incorporating the UNCRC. As an organisation that has provided independent advocacy for more than 40 years, we are all too aware of the challenges that care-experienced children and young people face in navigating the world of their rights. We firmly believe that the bill as it stands is a good attempt to tackle that challenge.
The bill is full of advantages—there are too many to go through. As you said, convener, it includes both proactive and reactive measures. That full spectrum of access to justice and information options will be what makes a difference day-to-day for children and young people. That is really exciting.
I want to make it clear that there are no disadvantages, but there are areas that could be strengthened, particularly the children’s rights scheme and the public authority reporting duty, both of which are important but could benefit from a few additions. I can run through those briefly and then expand on them later.
I will pause you there, Carly, because I know that colleagues will want to probe the specifics of that. I promise that we will come back to it.
Josh Kennedy (Scottish Youth Parliament)
Thank you for having us along today. The SYP has been campaigning on the issue for quite a while and, even before it was a mainstream issue, our “Lead the Way” manifesto for 2016 to 2021 noted that an overwhelming 76 per cent of young people agreed that the UNCRC should be fully and directly incorporated into Scots law and that the rights of children and young people should be protected and promoted. We are really happy that there has been a positive step in that direction. In our right here, right now campaign, which ran from 2017 to 2018, and in our children and young person’s meetings with the Cabinet, we have consistently called for full and direct incorporation.
There are a few reasons for making that call. Importantly, rewriting rights raises the risk of them being diluted and that is not in line with the principles of full and direct incorporation. UNCRC rights are universal and equal. Scotland can set a leading example for the world by not cherry picking which UNCRC rights should apply and keeping intact the principles of universality, indivisibility and interdependence on human rights, which is extremely important.
The basic rights of children should be the same wherever they live in the world. As members will be aware, Norway, Iceland and Sweden have all incorporated the UNCRC without difficulties in its interpretation. As one member of the SYP said:
“You can’t pick and choose what rights to protect as they’re ALL important. To do so could result in discrimination.”
That cuts through the argument.
That is a real concern for members of the SYP and the young people across the country whom we have consulted. If rights are in place, we can hold the Government and key decision makers to account—as I am sure that the committee will know. All rights are equally important. It is important to stress that point. It would be dangerous to permit decision makers and duty bearers to decide which rights will bind them and which rights will not bind them.
The maximalist approach to incorporation highlights that the UNCRC is the bedrock and baseline of children’s and young people’s rights. Article 41 of the convention underpins that. Encouragingly, we can build on that and put in place a higher standard of rights protections. Direct incorporation would not hinder the Government in going further. That is a good thing. Direct incorporation will allow Scotland to keep pace and adapt to international-level developments, taking into account the general comments of the UN that can inform a better approach.
By incorporating the UNCRC, we are ensuring that children who may be in vulnerable situations, and who live in Scotland but may not have British nationality, are also included. It is important that that group can access the new protections.
Finally, it is worth mentioning that Brexit, with the United Kingdom steaming towards exit from the European Union, and the further austerity restraints stemming from the Covid-19 pandemic put rights at risk in Scotland. Direct incorporation is the best way to address that and ensure that Scotland can be the best place in the world to grow up in.
Kevin Kane (YouthLink Scotland)
That was all excellent stuff from everyone. I will leave the overarching stuff well alone and focus on the bill’s two-pronged approach to the proactive cultural shift on children’s rights—which is really positive—and the reactive commitment to protection when a child’s rights have been breached.
Our sector is excited about the proactive elements, because we are positioned to inform and enable other services that are built around children and young people. That will help everyone to get policy and law fit for purpose at the earliest possible stage.
As an educational practice, what really excites us is the chance to bring about the positive cultural change that we often talk about. In the youth work sector, we are fortunate because we are in schools and communities and are in a unique position in that we take a non-formal approach with young people. Those things substantially increase the reach of our sector.
On the reactive side of things, we are keen to explore how youth workers can develop their approaches to ensure that young people have access to remedy and redress. In the most serious breaches, we stand ready to provide child-friendly advice and advocacy. In particular, we could give that to those people who face additional barriers in pursuing remedies.
We have heard from thousands of children and young people at every phase of this consultation, and they have driven the campaign to where it is today. They tell us that they want this bill.
Representatives from other countries tell us how incorporation of the UNCRC has changed how children see themselves, which is brilliant. We know from international precedent that, with incorporation, children’s views are better considered at every level of decision making and policy planning.
We are on the cusp of something special. Therefore, it is incumbent on everyone here to get everything to do with the bill—the passage, commencement, implementation, support and guidance—correct from the get-go.
That is helpful. We are living in challenging times, and the pandemic has highlighted existing inequalities, particularly for disabled children, minority ethnic people and, perhaps, children and young people in general. Will you say a few words about how you think the bill will lead to a better realisation of all children’s rights for different equality groups?
The legislation will be a strong tool for us, with regard to our ability to advocate the rights of children from across different groups and let children and young people know that their rights are protected by it.
There is a way of enhancing the children’s scheme to do a little bit more to ensure that the bill is clear that some children—those who have told us that they need extra help to ensure that their rights are respected—are identified, and that that is set out clearly in the bill.
The consultations that we have had with children and young people tell us that particular children struggle to access their rights. During consultation events that the committee has been involved with, we have heard about children whose first language is not English and those who might face food poverty or who cannot go to school.
We would like to call on ministers for one further addition; to include in the children’s rights scheme a provision that requires them to report every year and that set out steps that have been taken to respect, protect and fulfil the rights of children who have protected characteristics or who are in situations of vulnerability.
We have spoken about that far and wide across our membership, and we feel that it would provide the hook that we need to ensure that the bill meets its policy intention of realising the rights of all children and young people, particularly those who are more likely to see their rights marginalised.
Carly Elliott, on this panel, and Susie Fitton and Oonagh Brown, on your next panel, will be able to provide real examples of how that provision might make a make a difference in practice.
The bill has the opportunity to improve the experience of rights for all children but, as Juliet Harris said, there are some particular groups that are worth considering more expressly in the bill. We support her message about the addition to the children’s rights scheme that she outlined.08:45
When the state makes the difficult decision to intervene in the life of a care-experienced child or young person, it does not just disrupt their family construct—the child is entered into a world that is full of formal meetings and quasi-legal processes. The challenge that the child faces in having their rights met and upheld, and even in understanding what their rights are, cannot be overestimated.
I will provide some case studies that might be helpful to explain how the Covid-19 pandemic has impacted care-experienced children and young people day to day. Our advocacy workers around the country are supporting young people right now to challenge rights decisions that are concerning. Most prominent are issues about contact with family members. Some children have been told that they are not allowed to have contact with their mum, dad, brothers or sisters due to family members living in different levels. They have been told that, if they have contact with family, they will have to isolate alone in their room for seven days on their return to their care placement.
These are challenging times and we must ensure that situations such as that are clearly mandated in the bill. We must ensure that not only do children and young people understand their rights, but the professionals and adults around them understand how to use the legislation to protect and uphold those rights, especially in relation to the children whose rights are more challenging to understand.
We echo what Juliet Harris and Carly Elliott have said. We place high importance on consulting young people—I am sure that that does not surprise you—and seldom-heard young people. We know that certain young people, particularly vulnerable young people, struggle more than others to access their rights, so we would like provision in the scheme to be extended beyond what is currently listed. For example, including independent advocacy in the scheme would go a long way towards helping young people who struggle to access their rights.
We are keen on ensuring that such young people are not left behind in the process, and we echo the calls of other partners to mention the needs of vulnerable groups and protected characteristics in the scheme. We place high importance on a recognition that it should not be a one-size-fits-all policy, as we must not leave any vulnerable groups behind.
We support the amendment that Juliet Harris proposed, and I thank Carly Elliott for her tangible examples. As we said in our written submission, the connection between children, women, disabled people, ethnic minorities, care-experienced people, homeless young people and many other groups is that the issues that they face have been exacerbated by Covid-19. It has highlighted existing inequalities—that is a really important point. We must consider wider human rights protections, so we are really positive about focusing attention on key groups in the children’s scheme, as outlined by Juliet Harris.
Alex Cole-Hamilton (Edinburgh Western) (LD)
I note for the record that I am a former employee of YouthLink Scotland, and I was a director and convener of Together Scotland.
The UNCRC is a living document and is adapted or interpreted in a range of ways, including through general comments, optional protocols and the concluding observations of UN rapporteur visits. Should section 4, on the interpretation of the UNCRC requirements, be expanded to take account of general comments and concluding observations, or any other opinions or international human rights treaties? Could there be any unintended consequences if the bill were amended in that way?
Yes, it most definitely should be expanded. We strongly believe that section 4 needs to be amended to include decisions that are made under the third optional protocol of the UNCRC, as well as general comments and concluding observations, not just from the UN Committee on the Rights of the Child but from the other UN treaty bodies, in a way that aids the interpretation of the rights in the UNCRC. It is worth reflecting on the fact that, last year, we celebrated the 30th anniversary of the UNCRC, so the document is 30 years old. I do not know whether the internet was invented 30 years ago, but the world changes and we need to see the UNCRC as a living instrument, so that we can adapt and view the rights in the—[Inaudible.]
It is strongly recognised that concluding observations, general comments and other interpretive sources are an authoritative way to see the UNCRC as a living instrument, to identify what rights look like in an ever-changing world and to understand the UNCRC in the modern context.
We would never say that concluding observations and general comments are binding; they are not binding and they do not seek to be binding, but they provide helpful and enlightening means of interpretation. We have some examples. The UN Committee on the Rights of the Child is currently drafting the general comment on children’s rights in the digital environment. That will be absolutely key to how we see children’s rights in the digital environment; we could have done with it right now, as we work in the pandemic with children and young people. General comment 16 looks at children’s rights and the impact of the business sector. It helps to clarify some of the obligations on private bodies that deliver public services, which I am sure we will discuss in talking about section 6.
It is also important to include general comments from other treaty bodies and not just the UN Committee on the Rights of the Child, in recognition of the inter-related and indivisible nature of human rights that Josh Kennedy referred to. That will help to encourage alignment with other treaty bodies ahead of further incorporation—we hope—of other human rights treaties, following on from the work of the First Minister’s task force. For example, for the UN Convention on the Rights of Persons with Disabilities, there is a general comment on the right to inclusive education, which we should of course be looking at. There is a general comment on women and girls with disabilities and, of course, we should be looking at that. Therefore, section 4 should include not only general comments from the UN Committee on the Rights of the Child but those from all treaty bodies.
General comments on the wider jurisprudence need to be prominent throughout the bill, so it is not just about including that in the interpretation clause, but I strongly advocate that it should be reflected in the children’s scheme as something that ministers should consider when they make and revise the children’s scheme. In that way, we will bring together all the expertise from the international community and apply it in the Scottish context to make sure that the bill really is the gold standard.
Juliet Harris has covered that perfectly; I will add some comments. We support the inclusion of things such as general comments and concluding observations in section 4. If there is ever suggestion that the articles in the CRC are vague or difficult to interpret, that is the way to get past that and offer detail. That is incredibly important, especially as we progress through the pandemic and our understanding of the application of rights changes and gets more nuanced.
Juliet Harris mentioned the need to consider such UN documents throughout other parts of the bill, including the design of the children’s rights scheme, and we support that incredibly important point. I also quickly note that, perhaps more in terms of the children’s rights scheme and the drafting of any supporting guidance to the bill, if we want to better understand how we can support the needs and protect the rights of care experienced children, there are documents and frameworks that will help us to do that, such as the UN “Guidelines for the Alternative Care of Children”. Although we are talking about general comments and concluding observations, and perhaps reports of days of general discussion, it is worth noting that those UN guidelines have been an important source of knowledge for us as we move forward.
We echo what Juliet Harris said. We fully support the idea of general comments and concluding observations from wider human rights treaties being included. It is an important level of accountability for decision makers to be held to account for their actions on young people’s issues.
We spoke about that at length with our members and young people as part of the bill process. They heavily emphasised that, because they are experts, they know what they are talking about, and an objective stance is needed, paving the way for greater levels of insight into the processes for safeguarding our rights. That was really powerful and it is something that we are keen to protect.
The point about the application being across the whole bill and being broadly interpreted when writing the children’s scheme, which was first flagged by Juliet Harris, is really important.
The UNCRC exists to inspire, as we have heard from numerous witnesses. It is a living instrument and so the tools for interpretation should be maximised, because it is important to get back to the essence of what we are doing here today, which is protecting and serving children and young people. As just one example, Norwegian judges do that all the time; if they can do it, so we can we. An explicit inclusion in the bill would keep up with the progressive and evolving approach that we are taking to rights in Scotland.
There is clearly unanimity across the panel on that, for which I am grateful.
My second question is about commencement. The last piece of legislation about children’s rights that the Scottish Parliament passed was the Age of Criminal Responsibility (Scotland) Act 2019, back at the start of 2019. It did not have a commencement date and it still has not been commenced, so our age of criminal responsibility is still eight.
The bill does not have a commencement date either. Are witnesses concerned by that? If that is to be remedied by amendment, how quickly would you like to see it implemented, and would that be possible practically?
That question is absolutely key. We say that the bill must commence within six months of royal assent, so it really must commence by autumn 2021. The example of the Age of Criminal Responsibility (Scotland) Act 2019 shows why putting a commencement date in a bill is essential. We cannot predict what might delay commencement, whether it is a global pandemic or problems with the Government’s information technology system.
Interestingly, the Children and Young People’s Commissioner Scotland, Bruce Adamson, said at last week’s committee meeting:
“The bill is a bright ray of sunshine in what has been a very gloomy year”.—[Official Report, Equalities and Human Rights Committee, 19 November 2020; c 2.]
Although he is not normally one for understatement, this has been a more than “gloomy” year—it has been an absolutely dire year for children and their families. Thousands of children and their families have been sent into poverty; 76,000 young people have had the uncertainty of the exam fiasco and thinking that their future prospects were going to be dictated by which school they go to; and countless children have been unable to access their right to education during the pandemic. Children and young people from 2020 are going to be left traumatised by their experience during the pandemic, and they will need real support to deal with that. We are yet to see what the potential long-term impacts of lockdown on the educational attainment of children and young people will be.
In addition, I woke up this morning to hear that we face the biggest economic decline in 300 years. Yesterday, we launched a report about Brexit from the children and young people’s panel on Europe—“Young Brexit Voices: It’s Our Future Too”—which sets out their concerns about being able to live, work and travel in the European Union post-Brexit. The combination of the pandemic and the impact of Brexit makes it more important than ever that those rights are made binding in law.
This has been a more than gloomy year, and we have many more gloomy years to follow. We therefore have to make sure that the bill commences within six months, that the rights of children and young people are at the forefront of Covid recovery, and that they have tangible rights in law that they can draw on and use to counter the disproportionate impact that 2020 has had on their rights and prospects so far.
We therefore completely agree with Alex Cole-Hamilton that we must have a commencement date in the bill and that we must make sure that the bill commences six months after it has received royal assent, at most. We must also make sure that children and young people’s rights are at the absolute centre of everything that we do from this point onwards in order to counter what has been a way more than gloomy year.09:00
We whole-heartedly agree with Juliet Harris: commencement as soon as possible, within six months of royal assent, is crucial. The reason for that is the impact that the pandemic is having on our children and young people and, most importantly, on the most vulnerable among them. The pandemic’s impact on poverty worldwide should also be noted. The World Bank has estimated that, in 2020 alone, Covid will push something like 100 million more people worldwide into extreme poverty. We know that the people who will feel the effects of it most, for years to come, are our children and young people.
The bill is therefore really important for Scotland, and commencement needs to happen soon in order to provide extra protection for those groups. Right now, across the country, they are being affected by decisions that are made not through malice or the intention to cause harm in any way, but as a result of the difficulty of trying to interpret the pandemic situation and the associated guidance and guidelines.
For example, one of our advocacy workers was supporting a care-experienced young parent, whose child was no longer in their care but for whom there was in place a robust package of supervised contact that was always intended to rebuild that relationship. However, the rules of the pandemic have intervened in that contact relationship. Previously, the young care-experienced parent, who lives alone, had support from their mother, who was able to enter their home. Such support is incredibly important for a vulnerable person but, during the pandemic, because that person was entering the home, a decision was made to cancel contact because it was thought that their inclusion in the household might put the child at risk. That was a disagreement within the local authority.
The bill offers the opportunity to provide clarity not only to children and young people with regard to what their rights are, but to local authorities, which are currently trying to navigate and understand complicated guidelines. Commencement needs to happen incredibly soon, because we are at a point in time when children’s rights need to be protected in law.
Thank you—those examples are hugely helpful and illustrative for the committee. Perhaps Josh Kennedy can give us the Scottish Youth Parliament’s view on commencement.
Members of the Scottish Youth Parliament fully believe that the legislation should come into effect as soon as possible. We have consistently called for the United Nations Convention on the Rights of the Child to be incorporated in law by 2021, and we would like the bill’s commencement to be realised by the end of the year. However, it is important to stress that that would, in our view, be the latest possible date.
As an organisation, we are very much aware of the strain that the Covid-19 crisis has placed on the Scottish Government and public authorities, and we appreciate that it has changed Scottish society since the initial 2019 consultation. However, the pandemic also highlights and exacerbates many existing children’s rights issues, as well as creating new challenges. One such example is the Scottish Qualifications Authority exam issue, which Juliet Harris mentioned. MSYPs have raised a lot of rights concerns during this period, and there have been quite a few to note.
At our July sitting this year, we proposed policy on the imprisonment of young offenders in respect of ensuring that they still have the right to social distance and to have equal access to healthcare. The motion was passed by a massive 97 per cent. Incorporation would ensure that, throughout the pandemic, imprisoned young offenders could access the right to be treated and respected with care, in accordance with article 37 of the UNCRC, and the right to the best possible healthcare, in accordance with article 24. That is extremely important.
Furthermore, more than half of the respondents to our lockdown lowdown survey, which was carried out in April 2020 in partnership with Young Scot and YouthLink Scotland, had concerns over their ability to access rights as a young person in the Covid-19 context. We saw that with the SQA issue, with young people really concerned about their futures.
The bill’s commencement must be a priority, as it will provide much-needed protection for us, as children, to enable us to navigate our way through the pandemic and the resulting recovery period. We anticipate that many public authorities will be prepared for the commencement of the bill. With those factors in mind, we believe that it is reasonable and practical to call for a commencement date by the end of 2021, but we acknowledge that that should be the absolute latest date.
I will try to be as illustrative as possible. I will get the obvious out of the way first—this might sound generic, but it is important to say that we believe that commencement should be done on as short and effective a timescale as possible. We focused on that question with young people, because we wanted to speak with confidence in sessions such as today’s, so that is not my answer or YouthLink Scotland’s answer; that is me letting the committee know the majority view of our youth work sector.
The committee heard a wee bit from Josh Kennedy about the lockdown lowdown survey that we carried out along with Young Scot and the SYP. That has been an on-going process and we have gone through thousands of written responses from young people and questions related to their mental health and wellbeing, employability issues and broader issues in their lives, which was just last week. You would need to have a heart of stone not to be affected by the sheer volume and level of intimacy in the answers about how disillusioning the pandemic has been for young people. I was thinking this morning that it is important to note that those same young people who made so many sacrifices are the ones who are at times most heavily stigmatised as a result of lockdown.
To echo some of the other comments that have been made, we cannot afford to write off a whole generation as the Covid-19 generation—that is not acceptable, so it is really important that we protect those young people from the disproportionate impacts of Covid-19. As such, we believe that explicitly naming a date in the bill would ensure that their rights are respected. Beyond that, what a wonderful message we could send—a message of real hope at this time. The short answer is that, if it takes a date to focus people’s minds, six months would be acceptable.
Mary Fee (West Scotland) (Lab)
The approach that the Government has taken in the bill is to focus on a duty not to act incompatibly rather than take a dual-duties approach, which would include a due regard duty. The reason it has given is that that could cause unnecessary duplication. We have heard differing views on that in evidence; some people are supportive of the Government’s approach and some would prefer it to take dual action and include a duty on due regard. What are the witnesses’ views on that?
In the original draft Children’s Rights (Scotland) Bill that we gave to the Deputy First Minister on universal children’s day back in 2018, we included a due regard duty and a duty not to act incompatibly. We thought that that was important to ensure that we take a proactive and reactive approach to ensuring implementation of the UNCRC. We called it a carrot-and-stick approach to making sure that there are no breaches of children’s rights, which was the intention of the due regard duty. We also had the stick to make sure that, if children and young people’s rights are breached, they can do something about it and can access the courts and remedy.
I will concentrate on the policy ask. The due regard duty is about front loading children’s rights in the decision making of Government and public bodies. That is where the children’s scheme and the public body reporting duty offer a way of achieving the same policy purpose, but without a due regard duty.
That is why we have recommended in our response some additions to the children’s scheme in relation to data collection, human rights education and steps to ensure access to justice for children and young people, including legal aid and advocacy for complaints. We feel that, if those are in the children’s scheme and ministers have to report on them every year, that would help to put those measures in place at national Government level to ensure that we have a proactive approach to children’s rights. The scheme is already strong, but we can always come up with ways that it can be strengthened.
The children’s scheme applies only to national Government, so we would welcome consideration of a few more proactive measures to be included in the public body reporting duty. That would help to fulfil what we are looking for from the due regard duty. We welcome the fact that listed public bodies have to report under section 15 of the bill, and we recognise that it will help to promote rights-based policy making.
We would like that duty to be not just retrospective but a planning and reporting duty. If, every three years, public bodies had to set out not just what they have done but what they plan to do over the next three years, for scrutiny by children and young people and civil society, that would significantly strengthen the proactive approach of the bill. We encourage public bodies to include in that what they are doing on children’s rights impact assessments, what they are doing to ensure child-friendly complaint mechanisms, and what they are doing to ensure adequate data collection, so that they can evaluate the impact of their services.
Through those additions to the reporting duty for public bodies and to the children’s scheme, we can achieve the policy intention that we wanted through the due regard duty, perhaps in a more proactive and comprehensive way.
Again, Who Cares? Scotland agrees strongly with Juliet Harris. Although we would be supportive of a due regard duty, there are other methods that could include the intention of encouraging a conscious and planned approach to day-to-day delivery of activities. Juliet’s suggestion of a more planning-focused approach to the public body reporting duty could be an incredibly important addition.
Juliet also mentioned creating the expectation that reporting will include steps to ensure provision of access to advocacy for all children, but especially for people in the groups that we have spoken about today, who might require additional means to have their rights protected and fulfilled.
There are areas that we can learn from in that regard. The corporate parenting duties in the Children and Young People (Scotland) Act 2014 include reporting requirements. We work closely with corporate parents, and we support them in understanding what they can do, through their services, to better the lives of care-experienced people. We see that the corporate parents that take a more proactive and planned approach to how they report on what they are doing and how they adapt their services have a much more positive experience of fulfilling those duties.
Those proactive steps also involve directly the engagement and participation of care-experienced people, which is something to consider with the reporting duty. The participation of children and young people in the creation of planning and reporting documents will be incredibly important.
Again, the corporate parenting work is most successful when corporate parents engage directly with care-experienced people, but also when they engage with organisations such as ours and CELCIS to help them to navigate through what the duties mean in practice. That is an important point to note, particularly in relation to organisations such as ours, which provide independent advocacy and which have for years been seeing what it means if we do not get rights protection right for that population of young people.
I am sure that it is not surprising that young people want accountability on the part of public authorities. The SYP echoes Juliet Harris’s call, which was stated so perfectly, on the reporting duties, which we hope will not be too onerous.
We would also welcome reporting duties on local authorities. Young people want the concept of due regard but, in line with responses to the bill, we favour the idea of expanding the reporting duties. However, we would favour the method that would provide most transparency and accountability for young people, to ensure that rights are protected.
I am a young person but, unfortunately, I am not an expert on the technicalities—as, I am sure, members appreciate. Therefore, we are happy to provide more evidence after the evidence session, should the committee require that.
The short answer is that the bill could go further to ensure more proactive and positive measures to help public bodies with their decisions and priorities. A due regard duty would be a useful addition.
However, I will pick up on Juliet Harris’s point that making it a planning and reporting duty—which must include what public bodies are doing to include collection of data on child rights education and advocacy and human rights education—might be a more proactive and rights-embracing approach to take.09:15
I thank the panel for those very helpful responses.
My next question is about the definition of “public authority”. In section 6, it is not exclusively defined, although its meaning has been considered in a human rights context in courts. I will give an example before I ask for broader views on the definition.
Section 6 says that a “public authority” would include ministers but not the Parliament. Do the witnesses think that the definition should be more clearly laid out in the bill? If so, what changes would you like?
I thank Mary Fee for the question. We really welcome the scrutiny on that key part of the bill, but we definitely think that the definition of “public authority” in section 6 needs amendment to clarify the organisations that are included in the duty. We support the evidence that has been provided by witnesses including Dr Katie Boyle and Andy Sirel of JustRight Scotland, and the perspective of the Scottish Human Rights Commission.
As was highlighted in previous evidence, the definition of “public authority” that is used in the bill does not provide clarity. That leaves children and young people, and those who provide services to them, uncertain as to whether the bill actually applies in various settings.
It is really important to go back to what we are trying to achieve with the bill. It is about children and their human rights, and about making sure that we protect children’s human rights in all services that can be considered to be public in nature. It should not matter who provides the service; it matters that children have equal protection of their rights.
For example, a disabled child might rely on transport to get to school. If that transport is provided by a private provider, would the child have the protection of the UNCRC? We have clarity that the child would have that protection if the transport was provided by a local authority, but if schooling is delivered by a private or third sector provider, will the child have the same rights as somebody who is in a local authority school? We do not know.
There are such issues across all sorts of areas of the lives of children and young people. There are so many areas of children’s lives in which services are provided by third sector or private providers, including residential care, foster care and secure care. There must be no inconsistency in how children experience their rights in different settings. The children do not know who delivers the services. All that they care about is that their rights are respected, protected and upheld.
I do not have the legal expertise to say how we should tackle that, but I encourage the committee to consider the evidence that has been provided by JustRight Scotland, the Scottish Human Rights Commission and others, in order to make sure that the bill provides clarity on the issue.
I am looking at the clock and see that we are halfway through. I still have three colleagues to bring in and quite a lot of ground to cover, so this is a reminder that if you do not have anything to add, that is absolutely okay. Carly Elliott, I am not trying to stifle you; that was just a reminder for witnesses.
I will keep my answer short. We agree fully with Juliet Harris. It is important to note the number of private and third sector organisations that provide services across the board for care-experienced children—for example, in day-to-day care, residential provision, mental health support and education. If we do not include private providers and, potentially, third sector organisations that provide similar duties, we will miss opportunities to protect children at their most vulnerable moments and, in particular, to realise their economic, social and cultural rights. We need to consider that strongly in the bill.
It is important to mention that many young people might not always make the distinction between public authority and other care providers. It is important that the Scottish Government and any public authorities that deliver services for young people are included in the bill, so that a rights-based approach remains consistent.
That is helpful.
To pick up on that point, I note that our sector is clear that youth workers and children and young people should be consulted during preparation of public body reports, and that child-friendly versions should accompany every part of the process.
YouthLink Scotland was informed of concerns about the issue that Mary Fee raised, particularly in relation to housing providers, childcare providers, private foster carers and public schools. On that broad point, I reiterate that it is not beyond the wit of all of us here, despite our not having legal training, as such, and not being solicitors, to ensure that children and young people across Scotland receive the same protection.
There is a little point to be made in relation to taking a comprehensive approach. It seems that an obvious omission is that the Scottish Courts and Tribunals Service is not listed in the authorities with reporting duties under sections 15 and 16. Although it is said that that is covered by the ministerial duty to report, given the proximity and importance of the SCTS as duty bearers for young people, I think that it should be listed in the bill.
That is very helpful.
Gillian Martin (Aberdeenshire East) (SNP)
Kevin Kane has nicely introduced my theme, because I want to talk about the readiness and suitability of the existing courts and tribunals to incorporate the UNCRC. Existing courts and tribunals, rather than a new judicial body, will authorise the judicial remedies that are proposed in the bill. Are they accessible enough to children and young people? If not, what changes should be made to the bill or to the institutions more generally? Will the courts and tribunals be effective in practice? Will they focus on what a child or young person might want? Will they ensure that changes are made in the public authority concerned for the benefit of other right holders in the future?
I wonder whether we can go to Carly Elliott first on those questions.
Yes—I have not been caught off guard. [Laughter.]
The enforcement of rights through the courts is an incredibly important part of the bill. Children and young people’s right to legal recourse is incredibly important for creating accountability, and it can be used as a last resort for challenging rights breaches that they have not managed to rectify through other means.
That said, I would argue that the court process is inaccessible and intimidating for all people, never mind children and young people. For that reason, I will focus my answer on the more proactive alternative mechanisms on which the bill should equally focus, which we mentioned in our written submission.
The role of advocacy services is incredibly important in that regard. If the bill was able to focus more robustly on the provision of services such as advocacy, children and young people could be supported to challenge rights abuses without having to step into the legal sphere. I do not think that any of us wants children to have to go to court, either directly or with other organisations through the sufficient interest test. We want to keep them out of that space.
Earlier, Juliet Harris mentioned additions to the children’s rights scheme, such as the inclusion of access to advocacy services for all children, especially those who need it most, and the inclusion of child-friendly complaints mechanisms and procedures. Those methods will ensure that children do not have to step into the legal space unless there is an urgent need for them to do so.
We have learned about child-friendly complaints processes, but I do not think that we truly understand what they should look like. Our advocacy workers have lots of experience of supporting children and young people to lodge complaints with local authorities and other organisations through their typical complaints procedures. We hear all the time that those experiences are unsatisfactory. They lack communication, there is no feedback loop to children and young people about what is happening, and they take a long time. Importantly, our advocacy workers reflect that such relationship-based advocacy support is often what keeps children in the complaints process until the end. Without someone helping them to navigate such processes, many children opt out at early stages because the processes can become so convoluted and complicated.
In summary, I do not necessarily think that the courts are accessible for children and young people. Legal services are offered through incredible organisations such as Clan Childlaw, which take a relationship-based, trauma-informed approach to supporting them. However, they are still entering an adult system. That is our greatest challenge, and it is also why the bill needs to focus more prominently on additional measures such as access to independent advocacy.
Dr Katie Boyle recently gave strong evidence on access to effective remedies, and I endorse and support what she said. There is potential to strengthen the bill in that area by adding the right to such a remedy. As Gillian Martin said, it is important that whatever remedies are available should be effective for the specific circumstances of children and young people and in addressing systemic issues that might have resulted in the breach of their rights.
Together welcomes the committee’s consideration of whether there should be an amendment to add the right to an effective remedy or to allow courts to strike a balance in ensuring that remedies are just, effective and appropriate. That would empower courts to be more interventionist and help children to access prompt and effective remedies.
I also completely echo everything that Carly Elliott said. We want the courts to be the very last resort. It is essential that children and young people have access to them and that they can go there. However, we want to see breaches of children’s rights being tackled as close to the breach as possible. That is why we are calling for the children’s rights scheme to be more specific on access to child-friendly complaints mechanisms and access to advocacy. It should also set out the steps that the Scottish Government is taking to ensure that children and young people have access to legal aid, which will be key to enabling them to take cases to court and access effective remedies.
The Scottish Youth Parliament is very pleased that the bill does not include a victim test. It is important that we draw a distinction when it comes to cases that are brought in relation to a UNCRC breach, because they are made on behalf of children and young people, who are a vulnerable group who might not always have the knowledge, confidence, ability or capacity to bring such a case. To do so would ask a lot of any young person, but especially one who has been isolated or excluded from society.
MSYPs have told us that they would like to see a wider variety of individuals and bodies being granted the ability to bring court proceedings. We therefore support the sufficient interest test and believe that it will help to ensure that vulnerable children and young people can be better represented in cases. Our members have also told us that the more clarity there is about who can bring a case, the better.
The point about the process being intimidating is a good one. I do not want to labour that too much, but I know that, if I had had to go into such an environment at the age of 15, I would have been a lot more nervous. The need to ensure that young people have the capacity for that cannot be overstated. We agree with Juliet Harris and Carly Elliott that more clarity should be provided on exactly who should be enabled to bring cases. Having that written in law would provide such clarity and, importantly, more accessibility to young people.09:30
Those were comprehensive answers, which allows me to think beyond the bill more broadly. We know from young people that access to justice remains a big issue. The bill is an opportunity to consider what we mean by “access to justice”. For the bill to be a truly watershed moment, free access to advice, remedy and other forms of advocacy should be considered for all people. Although I know that that goes beyond the bill, if these sort of discussions on children’s rights can positively influence policy planning across Government portfolios, it can only be a good thing.
On access to justice, the prospect of barnahus is coming down the road—our colleagues in Children 1st are doing a power of work on that. There is an opportunity for us to think in a less siloed way. I see the bill as part of a bigger discussion about how we make the youth justice system fit for purpose, including by making it more inquisitorial, which we know from research gets better results. That would mean that the system would be in keeping with what we want to achieve from incorporation.
One of the witnesses at last week’s meeting, Bruce Adamson, said that the system is
“designed by adults for adults”.—[Official Report, Equalities and Human Rights Committee, 19 November 2020; c 19.]
That certainly chimes with us. We have numerous examples of support at the point of disclosure in the youth work sector. I commend the model of the 6VT young victims of crime service, which is based in Edinburgh. I will not go into too much detail here, but I will pass on information after today’s committee meeting. I recommend that the national task force on human rights leadership look into that specific question in more detail so that we can positively evolve the whole system for children over time.
That is helpful. We would appreciate that further detail if you are able to give us it after committee.
I have one more question, but I first want to ask Kevin Kane something. You mentioned barnahus and you said earlier that Norway has incorporated the UNCRC very effectively. Is the fact that Norway already has the barnahus system one of the reasons for that?
Absolutely—research tells us that that is the case. It also gets better outcomes no matter where someone is in the justice system, whether they are a perpetrator, whether they are in need of rehabilitation or whether we are considering restorative justice. It is part of a swathe of progressive measures. Working with a system is certainly easier than taking a bill forward within a system. However, we also have to face the realities of where we are and get the bill through while certainly not neglecting any good models of practice that we can take from our international partners.
That is helpful—thank you. Carly Elliott mentioned other public bodies, and I would like to know what other witnesses think in relation to whether public bodies already have sufficient child-friendly complaints processes.
The answer is quite simply that no, they do not yet have those. A lot of work needs to be done in that area. I wanted to be able to highlight good practice in child-friendly complaints mechanisms and I did my best ahead of this session to find some. However, it is patchy, and we were not able to find a good model of a child-friendly complaints process in Scotland to put forward to the committee.
Interestingly, the Welsh Parliament published an inquiry into the implementation of the Welsh measure this summer in which it called for better child-friendly complaints processes. It is a challenge that we are all facing, and we need to look at the international community more widely to find good examples that we can highlight and publicise, and encourage public bodies to pick up on. It is in public bodies’ interest to have good child-friendly complaints mechanisms. If children and young people can raise concerns about their rights early in the process, that stops the problem from escalating and stops the breach from becoming more serious.
I am certain that we will be able to work closely with public bodies to learn from each other how best to support child-friendly complaints and to come up with a model that works to support the intention of the bill.
I have realised that I responded before from the wrong note.
We do not have an official stance on that area, but we know from a recent focus group that we ran with MSYPs to inform the family court law review that young people want these changes. It is important that courts are youth friendly. As Juliet Harris said, young people should feel able to realise their rights more fully. We believe that there should be adequate support and access to counselling during proceedings. I echo what Juliet said. It is important that young people can fully access those rights so that Scotland can become a rights-respecting society.
I am smiling with admiration at Josh Kennedy’s honesty. It happens to everybody.
It is important to start from what young people tell us. They want to know who they can safely complain to. Youth workers are often the first port of call for young people. Whatever we do must be simple, in plain language, easy to understand and non-confrontational and it must happen at the pace dictated by the young person.
Alison Harris (Central Scotland) (Con)
I would like to discuss court proceedings. Section 10 specifically empowers the children’s commissioner to raise court proceedings in respect of the duty on public authorities. More generally, section 7 says that an individual or organisation can raise court proceedings in respect of that duty. In practice however, for judicial review proceedings, litigants will also be required to demonstrate “sufficient interest”. Are you happy with that overall approach, including with how the Government’s policy intention is given effect to in the wording of sections 7 and 10?
Regarding section 10, we welcome the fact that the commissioner is included in the bill and is able to raise proceedings on behalf of children and young people. That is an essential way of ensuring children’s access to justice and that some of the more embedded and systemic issues that affect implementation of the UNCRC, and some of the serious issues that affect children and young people, can be addressed. We endorse and welcome the provisions in section 10.
We said in our response to the committee that we would welcome clarity on whether the provisions in section 7 achieve the policy intention. Overall, we welcome the approach that has been taken and the removal of the victim test. We understand that courts interpret “sufficient interest” broadly. Together is a membership organisation. It is a significant development for organisations to be able to take cases on behalf of children and young people. That will allow us to support children who are in the most vulnerable situations and who might not be able to take a case themselves.
The committee heard strong evidence from Andy Sirel of JustRight Scotland, in the first evidence session on the bill, about the importance of the provision to enable cases to be raised on behalf of asylum-seeking children, who may not be able to navigate the complex legal systems and may be facing so much trauma that the last thing they need is to be involved in legal proceedings—[Inaudible.]
Sorry, Juliet—your sound has dropped a little bit.
We hear what you are saying now.
I am sorry—it is dodgy wi-fi.
We welcome section 10. We also welcome section 7 and the policy intention behind it, but we would welcome clarity on whether its provisions will achieve that intention.
We support the inclusion of both section 10 and section 7, and we especially support the exclusion of the victim test. The inclusion of the sufficient interest test is an incredibly important provision that strengthens the bill. Organisations such as Who Cares? Scotland would be primed to take cases to court through that test. As an organisation, we see systemic rights issues across the country—we have advocacy workers in almost every local authority in Scotland, and we have a presence through participation in every local authority. Organisations such as ours, which work within a national remit, are especially well placed to see issues arising across the board and it is incredibly important that we will not only know about such things but have the power to address them.
However, we need to think about the provision of sufficient training and education for organisations such as ours with regard to what it might mean to take cases to court or raise proceedings, whether through the children’s commissioner or otherwise. Perhaps the duties in the bill that will be provided through the children’s commissioner could take into account the fact that we will need sufficient training to understand what it means to take cases to court on behalf of both individual and collective groups of children and young people.
I know that Josh Kennedy shared some reflections on those aspects of the bill in his previous answer—if he wants to tell us again, that is fine.
I refer the committee back to what I said on the sufficient interest test, which is so important. It would be good to get clarity on where it applies to young people and who it applies to.
In addition, it is worth stressing that the Scottish Youth Parliament is delighted at the inclusion of the Children and Young People’s Commissioner Scotland in the bill—it is a really positive step. Once again, when we consulted with young people, they told us that they consider it essential that such bodies have powers.
As the committee will know, many children and young people struggle to have the knowledge and confidence to bring their own complaints. We have certainly heard that young people, including care-experienced and disabled young people, are more likely to have less confidence and the knowledge to enable them to take action against breaches of their rights. Through the provisions on the commissioner, we can take meaningful steps in safeguarding our rights and providing some equity in these matters.
There is a lot of great stuff in the bill. YouthLink Scotland also thinks that it is really positive that the children’s commissioner will be able to take cases on behalf of young people. That will be hugely important in the bill’s implementation phase and, more broadly, for the recognition of children’s rights.
It is worth putting on record that there has been some discussion with youth work leaders on that point. There are some—they are a minority, but enough to mention—who would like there to be explicit mention of youth workers, framed in appropriate wording, so that particular youth groups could take a case on a young person’s behalf. Our sector is not alone in that regard.
However, we have been listening to many of the arguments on how the sufficient interest test is currently applied, and we are persuaded that the definition is interpreted widely. The fact that the victim test has not been included in the bill represents a welcome widening of access.
The short answer on the question about section 10 is that we will support the approach that allows the youth work sector to be utilised to its fullest potential in that space.
On section 7, my short answer—it is a slightly longer answer, but not too long—would be to echo what Juliet Harris said: clarity is required to achieve the policy intention, and it is crucial that young people’s evolving capacity and maturity is taken into account as they progress through various ages.09:45
The comments about balance of power merit strong consideration, especially given the vast differences in a young person’s capacity to access the law, which is often due to issues outwith their control. That can be to do with information, finance or advocacy, or it can just be because they are in a situationally disadvantaged position.
I would say that section 10 is spot on, but a wee bit more clarity is required on section 7.
I would like to ask about time limits for bringing court proceedings. The committee has received written submissions offering mixed views on whether it is correct to exclude the period when a young person is under 18 when calculating the time limits for raising court proceedings under section 7. Would you like to comment on that issue or on the approach to time limits under section 7 more generally?
We strongly support the policy intention behind the provisions on time limits in section 7. The provisions support the evolving capacities and maturity of children and young people as they get older, and they recognise that they ought to have the right to have a say on acts that were done to them when they were too young to do anything about it themselves or when they were not aware that whatever happened was a breach of their rights.
Importantly, as Kevin Kane said, the provisions address the issue of balance of power. The children who are most likely to experience breaches of their rights might be those who are in secure care—they might be care-experienced children and young people. The idea of a 10-year-old child taking a case against the corporate parent—against those who are supposed to be providing care to that child—is terrifying. There is no way that we can expect children and young people always to be able to take cases at the time when the breach occurs. It is really important to give them the option to raise cases right up until after they reach the age of 18.
Carly Elliott of Who Cares? Scotland has provided some really strong examples of the fear that children and young people have of even raising complaints against corporate parents—the idea that they would take legal action against a corporate parent is unthinkable to some children and young people.
We absolutely welcome the policy intention behind section 7. We think that it is essential for children’s access to their rights and their ability to bring claims against breaches of their rights. We just want to double check that the bill as drafted meets its policy intention.
We whole-heartedly support the time limit provision and the ability to start the clock at the age of 18. I would echo everything that has already been said. The discussion about the power imbalance that children and young people face is incredibly important, no more so than for care-experienced children. As the state intervenes, they are thrust into a world that is full of formal processes and legal interventions, and that is worth stating again in this discussion.
Children might not realise that their rights are being breached, and the removal of the—[Inaudible.]—time limit is a helpful way to acknowledge that. Juliet Harris mentioned the situations that we hear all the time from young people about how they feel disempowered to raise challenges against the people who are tasked with their care—their corporate parents and whoever else.
I want to read a quote to you. When we were shaping up our written response on the bill, we engaged with our care-experienced membership through a variety of means. I have included some material from that in our written response to you and, in the next couple of weeks, we will be shaping up and sharing with you a broader report that reflects on this point. I think that the quote answers the point really well:
“The environment wasn’t child-friendly. I felt that I couldn’t talk about it if my human rights weren’t being met. I couldn’t say anything about my home with that person I lived with sitting right next to me. Can I really express what my rights are without causing offence and damaging my childhood home any further than it already is?”
Those comments are incredibly powerful; they make the point that we cannot expect children immediately to raise issues at a young age and to understand what that would mean.
Thank you, Carly. That is, indeed, a powerful example—it speaks to the imbalance of power that we have discussed.
We do not have an official policy stance on the time limit provision, but I think that it is undoubtedly a really positive step, given that young people have told us that they want to be able to access their rights as easily as possible. I have no doubt that the provision will help to facilitate that.
With that in mind, we welcome the provisions on time limits alongside the provision that allows cases to be lodged up to a period of a year after the event and how that applies to those aged under 18. We consider that to be equitable, because we appreciate that younger and more marginalised children might not yet have the capacity or desire to bring a case but might want to bring a case as they age. When I was 12, I definitely would not have had the confidence to do that. Therefore, the proposal is extremely positive—especially in cases in which young people are reliant on toxic situations and feel threatened about challenging them. I echo the excellent point that Carly Elliott brought up in that regard. We also agree with Together’s concerns about how things happen in practice and how we can ensure that things work.
I have probably already answered Alison Harris’s question, and people have gone on to give very good examples. I do not have much more to say, but, for the purposes of the record, I simply say that there was nothing that we disagreed with; what was said was absolutely brilliant.
During the co-production of the new national youth work strategy, there was engagement with thousands of young people—both directly and through written surveys—and accessibility came out as one of the top themes. Therefore, we will have a job to do in the next year in examining how a lot of the questions that have been asked today and a rights-based approach can fit with the national youth work strategy.
Alexander Stewart (Mid Scotland and Fife) (Con)
I will ask about witnesses’ views on the provisions for the Scottish ministers to prepare the children’s rights scheme. There are suggestions that the language in the bill could be stronger or have more impact. What do you think the contents of the scheme should be? Examples have been given of youth work that has not featured in the scheme that perhaps should.
A number of sectors and people in groups perform the key role of connecting young people with issues in their community and in their schools.
The children’s rights scheme is really important. It links to the actions that we need to take to realise the ambition in the bill and it will help keep ministers accountable. The stronger and more explicit the scheme, the better. That is my partial answer.
In the relevant provision, the word “may” should be replaced with “must”. We could work alongside the Government on clear processes for children and young people, particularly in relation to accessing legal assistance and how the youth work sector can help with that. We understand that that process will require reviews of legal aid and resourcing to ensure that all children have access to confidential and independent legal assistance.
It will not come as a surprise that we always advocate for investment in the youth work sector. Research shows that there is a social return for spending in it. As a sector whose national outcomes are enshrined by UNCRC and a key deliverer of incorporation, it is quite an easy connection for us to make.
On advocacy, we did some workshops on the future of youth work in Scotland, and it came up time and time again that children and young people need support and advocacy to enable them to access their rights. Carly Elliott made some good points about that. Attendees also spoke about the importance of children and young people knowing what mechanisms are available to them. As we mentioned before, it is also important to recognise the swathe of rights and those that we might consider explicitly mentioning in the scheme. Children’s complaints mechanisms could also be discussed in the round.
Does that answer your question?
Alexander Stewart is nodding.
Juliet Harris, can we hear a bit more from you on strengthening the scheme?
Certainly. I agree with Kevin Kane. The scheme is very strong and we were delighted to see specific requirements on children’s participation, raising awareness of children’s rights, budgeting, and children’s rights and wellbeing impact assessments—CRWIA—in the bill.
At the moment, those requirements are specified only as “may” duties. For example, ministers “may” set out what they are doing. Our members are clear that ministers must set out what they are doing in those essential areas of implementation of children’s rights.
There is a children’s rights scheme in Wales. I have mentioned the parliamentary inquiry into the implementation of that scheme. It found gaps in practice in certain areas, such as children’s participation and child rights budgeting. It could be argued strongly that it was the failure to specify those elements as essential parts of the scheme that resulted in some of them not being properly embedded.
Given that learning from Wales, the Scottish scheme should explicitly require ministers to set out what they are doing every year on children’s access to justice and on data collection. We have already touched on advocacy, complaints and access to legal aid. We also need to know what ministers are doing to collect data to assess the impact of the measures of the scheme and on children’s realisation of rights, because that is the only way that we can ensure that we direct resources in a way that counters some of the implementation issues.
We would also like human rights education to be specified in the scheme, as well as the steps taken to secure the rights of children with protected characteristics and those in vulnerable situations, as we mentioned at the beginning of the session.
I echo what you have already heard. The language in section 11 of the bill needs to be strengthened to create more compulsion, by replacing “may” with “must”. Getting the detail right is what will embed rights most effectively in children’s day-to-day lives. If we get right this part of the bill, it will prevent children and young people from having to go to court.
As Juliet Harris and Kevin Kane have said, the scheme could be strengthened by the addition of child-friendly complaints mechanisms. Tia Mure, one of our care-experienced members, met the convener and Gillian Martin in the engagement sessions with young people, and she strongly emphasised the importance of a public education campaign that targets not only children and young people, but the professionals in and around their lives.
We would like to see the addition of access to advocacy for all children but explicitly for the groups who need it most and who have formal interventions in their lives. A specific reference to groups that need extra consideration, such as care-experienced children, is important. That cannot be referenced through protected characteristics alone, because that does not cover care-experienced children. A form of words that we collectively suggest to the committee is: “protected characteristics and children in situations of vulnerability”. That would ensure that we account for all children who need that additional access.
I will keep it brief. MSYPs consider that the inclusion of provision for a children’s rights scheme is an important and positive aspect of the bill. The scheme will get children engaged in rights and will bring about accountability, and we are really pleased to see its inclusion. It could also be strengthened, and we would echo the calls for the change from “may” to “must”. SYP and its work are founded on article 12 of the UNCRC, which is on young people’s voices being heard. We see some good examples of that. Children and young people meeting the Scottish Cabinet has been referred to, which enables us to raise issues directly with the Government. We would like that to trickle down and to have a rights-based approach to participation in the bill. We also echo Juliet Harris’s call for education on human rights to be explicitly included in the bill.
Fulton MacGregor has a question on child rights and wellbeing impact assessments. Alexander, I know that you have questions on resourcing—I will come back to you later.10:00
Fulton MacGregor (Coatbridge and Chryston) (SNP)
I thank the witnesses for their answers so far. The session has been very interesting.
As the convener said, I want to ask about child rights and wellbeing impact assessments. What are your overall views on the assessments? More specifically, what are your views on the legal duty of the Scottish ministers to prepare such assessments for legislation and for
“decisions of a strategic nature”?
To what extent should ministers have that discretion?
We strongly welcome the provision in section 14 that places the duty on ministers to conduct child rights impact assessments on decisions of a strategic nature. However, a bit too much discretion is included in the duty, because the bill says, “as they consider appropriate”, which we would like to be removed.
It is timely, because research shows that there is still inconsistent use of child rights impact assessments in Scotland. They are sometimes undertaken too late in the policy-making process, and they are not fully embedded across all areas of Government. It is important that they take place not just in children’s services but in all areas of Government work that impact on children and young people, such as transport and the environment.
The inquiry that I mentioned before concludes that the lack of a statutory requirement for CRIAs in Wales is a weakness, so having them in the incorporation bill is a strength.
Overall, we welcome the assessments, but we would like to remove the layer of ministerial discretion to ensure that it is clear that a child rights impact assessment must be done for all decisions of a strategic nature.
We agree that there is possibly a bit too much discretion in the bill at present. We recommend strengthening it and including more compulsion in relation to that issue.
Our more broad reflection on the use of child rights and wellbeing impact assessments is that, when done right and used well, they can lead to effective rights-based decision making and planning, which is incredibly important to the overall policy intention of the bill. The challenge is that, sometimes, they are not used well and they become a tokenistic measure. You have already heard strong evidence on that.
We must effectively train people on the purpose of using rights impact assessments, how to do them meaningfully and the benefits that people can get from undertaking them. It is about not just benefiting children and young people, although that is the paramount reason, but helping people to understand how to do their jobs using a rights-based approach. That is fundamental to the bill.
We welcome the legal duty of ministers to prepare child rights and wellbeing impact assessments for any new bills that they introduce to the Parliament. As an MSYP said, it will increase accountability, which is a key theme of the evidence that we have given today.
However, the wider CRWIA process could be strengthened by limiting the discretion of ministers to determine when it should be used. Young people want full and direct incorporation, as they believe that their rights should not be tampered with by decision makers, and we believe that allowing ministers to decide when it is appropriate to undertake a CRWIA could allow policies to slip past the review process.
We are also concerned about the discretion that is given to publish
“in such manner as the Scottish Ministers consider appropriate.”
MSYPs have specifically told us that it should be made accessible to children and young people to enhance accountability and equality. That is a straightforward and essential element to making children’s rights a reality in Scotland, so there should be a requirement to publish in a child-friendly format—if it is youth friendly, it is everyone friendly.
Thank you. That is a very good point.
Specifically, we welcome the section 14 provisions. However, the phrase “as they consider appropriate”, which Juliet Harris mentioned, needs to go because it is not good enough.
More broadly, we know that impact assessments are vital to ensuring that decisions are made effectively. I am aware that the evidence across Europe is varied, but what comes through strongly is that the higher the quality, consistency and obligatory nature of the approach, the greater the chance of success. Perhaps it goes without saying, but I will say it anyway: training and support also need to be in place around that issue, and our sector has masses of experience in that area. Again, I am happy to pass on examples of where we have taken on a proactive approach to training in the context of rights.
Thank you. Fulton MacGregor, do you wish to come back on that?
I thank the witnesses for their answers, which covered everything.
Let us move on to part 4 of the bill, which sets out significant powers in respect of incompatible legislation. As a committee, we are particularly interested in your views on the courts’ powers relating to incompatible legislation and the reporting duty as set out in section 23. I am aware of time, and I know that you have each commented on that in your written submissions, but I give you an opportunity to make additional comments.
In a nutshell, we really welcome what is included in part 4. We welcome the fact that courts have been given strike-down powers on incompatible legislation that is made prior to commencement of the bill. We recognise the limitations on the powers of the Scottish Parliament and that we cannot include strike-down powers on legislation going forward, so we welcome the steps that have been taken to put in the requirements for—I can never say this—declarations of incompatibility and incompatibility declarators.
In addition to that, there is a provision that requires the Scottish ministers to set out what they are doing to action incompatibility declarators, and we think that that duty should include a requirement to publish child-friendly versions of what they are doing to action incompatibility declarators. If a case has got as far as court, it is essential that the ministers speak to children and young people about the action that they will take to remedy an incompatibility declarator.
Thank you. Well done for saying that phrase so many times instead of avoiding it.
This will be a short answer: we are fully in support of that part of the bill. I agree with Juliet Harris that there needs to be something around the feedback to children and young people. The provision in part 4 spoke really well to the group of young people that we supported to meet committee members. They were particularly interested in what that would mean, and they felt almost as though it was not just about the legislation but about looking forward and future proofing the protection of children’s rights. It is notable that they were particularly interested in that complicated part, which uses phrases such as “incompatibility declarator” and “strike down” powers. Therefore, going forward, it will be important that the committee considers the inclusion of something that recognises the need to feed back to children and young people in accessible ways.
We echo what Juliet Harris and Carly Elliott have put so excellently. We also welcome the strike-down powers and the provision to work within the Scottish Parliament’s competence. Again, we would welcome any provision that could improve accountability and accessibility for young people.
Thank you, Josh.
Josh Kennedy summed that up wonderfully. I have nothing further to add.
I want to ask about the resource implications of the bill. Everything comes with a cost. We have heard about the possible need for training and support, which could have resource implications for organisations, public authorities and the third sector. Do panel members see a potential burden? Will resources have to be found to ensure that those organisations can do all of that?
I am positive about that. Taking a rights-based approach leads to better and more cost-effective decision making in the long run.
It is important to have the right resources for raising awareness and understanding of the UNCRC, but we are building on a long history. We celebrated the 30th anniversary of the UNCRC last year, and we have had GIRFEC—getting it right for every child—in place in Scotland since 2006. The Children and Young People (Scotland) Act 2014 already obliges the Scottish ministers to raise awareness and understanding of the UNCRC. We already have that commitment.
A general comment from the UN Committee on the Rights of the Child reminds us that investing in children must be seen as for the long term. One important way of securing children’s rights is to invest in families. The provision in the children’s rights scheme for child rights budgeting will help the Government to prioritise existing funding and ensure that resources are directed to uphold the rights of children and young people and that we comply with the UNCRC.
Together—the Scottish Alliance for Children’s Rights—is a good example of how a small amount of money and a tiny team can go a long way in raising awareness and understanding of children’s rights. That does not have to be expensive; it just has to be effective.
There will be a need for investment in training and education. To echo what Juliet Harris said, a lot of that work is already happening across the country. There are already effective mechanisms to enable young people to learn about their rights and to find out how to raise a challenge and have their rights upheld. We will be strengthening what exists already.
The children’s commissioner is in a strong position to offer enhanced training and access to information. It is important to consider that.
We should also consider access to advocacy. It is crucial that we invest in more access to independent advocacy for all children, and specifically for the groups that we have mentioned already. Advocacy provision is currently poor and does not reach all the children and young people who need it, but it is an essential way of sparing children having to go to court. That must be considered.
There are lifelong impacts. If we invest in advocacy services, particularly for groups such as care-experienced children and young people, that will have a positive and lifelong impact on those individuals. There will be investment implications, but it is essential and there will be overall savings if we invest early in measures such as independent advocacy.
I do not have much to add. This is not a new concept for Scotland: the 2014 act already put requirements in place. This is a next step, not a new one.
I echo the point that this is a future investment. The rights-based approach is important. We are making provisions to protect young people in law and in the courts, but we want to prevent things getting to that stage. A rights-based approach will ensure that young people’s futures are more secure, which will mean less of a burden on the state, because young people will be empowered.10:15
The answer to the question is yes and no, depending on how we approach it. The other witnesses have made that point very well. However, as is the case with any ambitious bill, there needs to be an honest look at the financial memorandum and the implications of it for the bill. I found looking at the previous testimony really helpful in getting a feel for the genuine worries. Research shows that UNCRC incorporation has never increased through litigation, which is a really interesting fact. It shows that incorporation is as much about a culture shift as it is about creating a space for the few cases that merit litigation. That approach works.
We have engaged with a lot of youth workers who operate in the heart of public bodies. Although we get the instinctive worry about resources, they are much more excited by the immediacy of incorporation than anything else. I will use our Scandinavian neighbours as an example again. Sweden’s approach to incorporation involved the Government designing a national programme to support local and regional communities and national agencies in the implementation of the law.
This is a space in which the youth work sector can be harnessed. We have multiple examples of working in schools and communities to deliver large-scale training and material on rights-based issues, but it is not just about us; it is about all the other agencies and sectors, including children’s groups and social work. The evidence shows that, when incorporation comes, there will be a mass mobilisation of people and groups at its back who will be ready and willing to ensure that it is a success. The question is how we use existing infrastructures to ensure that incorporation is a success.
I am very conscious of the time. We have kept the witnesses for far longer than we said we would, so I will draw the session to a close. The evidence has been really helpful and thorough, and good examples have been given. If there is anything that the witnesses did not get the opportunity to say in their written evidence or during our oral evidence session this morning, they should feel free to correspond with the committee.
I thank Juliet Harris, Carly Elliott, Josh Kennedy and Kevin Kane for taking part in the meeting. Please wait for broadcasting staff to switch off your video and microphone. You are then free to leave the meeting, but you can, of course, continue to watch the meeting on Scottish Parliament TV, if you wish.
I will suspend the meeting briefly while broadcasting staff set up the next session.10:17 Meeting suspended.
10:21 On resuming—
Good morning to the witnesses in this session. I welcome Oonagh Brown, policy and implementation officer for the Scottish Commission for People with Learning Disabilities; Beth Cadger, national co-co-ordinator for Article 12 in Scotland; Susie Fitton, policy officer for Inclusion Scotland; and Afrika Priestley, lead anti-racist and pro-black ambassador for Intercultural Youth Scotland. Thank you for joining us and for your patience while we concluded our first session.
We need to conclude this session no later than 11:45, so I make a plea for succinct questions from members and succinct answers from witnesses. I remind people to give broadcasting staff a few seconds to operate their microphones before beginning to ask a question or provide an answer.
There is strong support for direct incorporation of the UNCRC into Scots law. As the committee has heard, the bill is unique internationally because it includes active and reactive measures. What are the witnesses’ views on the approach that the Scottish Government is taking? I am particularly interested in hearing reflections on the potential benefits or disadvantages of the approach.
We will work to the order in which the witnesses appear on the agenda, so I ask Oonagh Brown to answer first.
Oonagh Brown (Scottish Commission for People and Learning Disabilities)
Thank you for inviting SCLD to give evidence. Similarly to the witnesses in the previous session, SCLD is very supportive of full and direct incorporation in so far as that is within the powers of the Scottish Parliament. We welcome the proactive and reactive measures.
The critical points that came across in the previous session were Josh Kennedy’s comments about full and direct incorporation not diluting rights and the need for a cultural change, which was raised by Juliet Harris. For SCLD, the move towards Scotland becoming a rights-respected nation and the work that is being done on the bill are critical, because that has created a discussion about the potential to incorporate the UN Convention on the Rights of Persons with Disabilities. It has been particularly heartening that there have been opportunities for children and young people with learning disabilities to be heard by committee members at previous sessions, to have a seat round the table and to be part of this process.
Although we are very supportive of the bill, I highlight our concerns that children and young people with learning disabilities, whose human rights might be viewed as being more challenging or resource intensive to fulfil, might be overlooked at times. In line with earlier comments, we would welcome the strengthening of the bill through several small amendments that we believe would make a great positive impact on the lives of children and young people with learning disabilities. I will not go into detail on those just now, but the headline aim is to ensure that the needs of such children and young people are made visible in the bill, by future proofing it for wider human rights treaties incorporation and by ensuring a reporting process that includes data disaggregation as well as accountability for public authorities.
I ask Beth Cadger to respond to the same question on the Scottish Government’s approach.
Beth Cadger (Article 12 in Scotland)
Good morning, everyone. I thank the committee for including Article 12 in today’s panel.
We echo the views of the other witnesses. We fully support the proposal to incorporate the UNCRC into Scots law, for which we have campaigned for some time. We believe that it is the most important thing that we can do to ensure that all children’s rights are respected and protected, and it would demonstrate that young people have the same human rights entitlements as adults. Such matters are particularly concerning at the moment due to issues arising from both the Covid-19 pandemic and Brexit.
We commend the Scottish Government’s commitment to ensuring that the participation of children and young people remains an underpinning principle throughout the bill’s progress through the Parliament and once it has been enacted. It is the only way in which the full and meaningful participation of children and young people will be at the heart of all its policy and practice. We ask the committee to consider whether the bill provides for the robust monitoring of all practices and that, if it does, it recommends to Parliament that that be put into place.
We do not envisage any difficulties with the incorporation model, but we believe that it should be viewed as a minimum framework and a baseline that can be continually held to account and built upon to create a gold standard that will protect and give a voice to all Scotland’s children and young people. We intend to scrutinise the bill’s impacts at national and local levels.
Susie Fitton (Inclusion Scotland)
Thank you very much for inviting Inclusion Scotland along today.
To reiterate and back up much of the evidence that the committee has heard this morning, Inclusion Scotland fully supports the bill’s maximalist approach, which would directly incorporate UNCRC requirements within the competence of the Scottish Parliament and make it unlawful for public authorities to act incompatibly with the convention.
It is important to stress that, although the rights of disabled children are provided for in the UNCRC, their rights as disabled people are provided for in the United Nations Convention on the Rights of Persons with Disabilities. I should say explicitly that Inclusion Scotland believes strongly that rights under the UNCRPD should also be incorporated into our domestic law if we are, indeed, to “respect, protect and fulfil” disabled children’s rights.
Disabled children consistently face additional barriers in pursuing remedies for breaches of their rights, including inadequate resources and barriers directly relating to their impairments such as a lack of communication support. The need for independent advocacy was stressed by many of the contributors to the earlier evidence session, and Inclusion Scotland echoes the need for such advocacy to be made accessible to disabled children, along with accessible information and knowledge of their rights. It is important to note that disabled children are often reliant on others’ acting on their behalf when capacity is an issue.
We believe that incorporation of the UNCRC is a vital first step, but disabled children must be able to access the legal system and trust it to protect and enforce their rights. They must also be able to obtain a quick, effective and fair response. As such, the ability to take public authorities to court has several positive effects, which I could talk about in detail. The pressing need for incorporation could not be clearer at the moment. Disabled children’s rights are at risk during the Covid-19 pandemic, and I would like to refer to evidence that we have on that as the committee continues its questioning.10:30
Afrika Priestley (Intercultural Youth Scotland)
Good morning, everyone. Thank you for having Intercultural Youth Scotland here.
Intercultural Youth Scotland and the anti-racism pro-black ambassadors fully support UNCRC incorporation. However, I think that it is important to examine—[Inaudible.]
I am sorry—can I just pause you there? We seem to be having some difficulty with your connection.
Are you able to hear me better now?
Yes, I think so, but I suggest that broadcasting colleagues drop the video. I am sorry. We lost you right from the beginning. I hope that you do not mind.
No worries. Can you hear me now?
I can. You are nice and clear.
As I was saying, not only has the community of black people and people of colour grown up with the structural racism that has seeped its way through the pandemic, it has also been dealing with the murders of innocent black people and the surge of the Black Lives Matter movement. This year, those things have, in tandem, shone a light on some of the oldest and deepest inequalities in our society, which have continued to persist for generations. A crucial part of that injustice is due to a lack of accountability across many groups of institutions.
We believe in and support the bill—absolutely. It has really great mechanisms that will enable us to hold accountable local authorities and public-facing sectors in protecting the rights of young black and POC children, and it has great potential to be a real force for good and power—and even for justice. However, as has been experienced by the black and POC community, the success of any policy comes down to the consistency and quality of its implementation. To enable true access to rights, we must first dismantle the systemic barriers that withhold them.
Thank you, Afrika.
Some witnesses have already touched on this. They should not feel the need to reiterate, but I want to hear some reflections on it. Clearly, the pandemic has highlighted and exacerbated inequality that existed before. If you have anything further to say on how you think the bill might lead to a better realisation of all children’s rights, that would be helpful. In addition, what guidance do you think public authorities need in order to ensure that they meet the duties that are set out in the bill?
In answering that question, I would like first to outline the fact that children and young people with learning disabilities face a number of human rights violations, and I think we could talk quite extensively about what those look like. I will give some examples.
One of the more shocking facts is the number of avoidable deaths of children and young people with learning disabilities. Recent research from the Scottish Learning Disabilities Observatory has shown that premature mortality is 12 times higher among children and young people with learning disabilities and 17 times higher among girls with learning disabilities. That is deeply concerning given the evidence that we have seen on the experience of people with learning disabilities during the on-going coronavirus pandemic and the higher mortality rates.
Another example is the use of restraint and seclusion on children and young people with learning disabilities. In a recent survey by the Challenging Behaviour Foundation and Positive and Active Behaviour Support Scotland, 88 per cent of the 204 respondents said that their disabled child had experienced physical restraint, and 35 per cent said that that took place frequently.
In addition, we highlight the inequality of opportunity that is faced by people with learning disabilities. A good example is that, in 2016-17, only 9 per cent of young people with learning disabilities achieved a level 6 qualification or above compared to 60 per cent of all other pupils. That figure is representative of the many stories that we have heard from children and young people about their lack of support in school, which came through strongly in the evidence session that we facilitated with a number of young people with learning disabilities. We heard about circumstances in which a young person was being undermined by school teaching staff because of their disability.
It is important to recognise that that inequality of opportunity extends to the lack of opportunity to form meaningful friendships and relationships, often because of a lack of relationship education and support to make and maintain friendships. Again, I refer to our previous evidence session, at which committee members heard from a young person with a learning disability about being unable to go out with friends because they did not have the one-to-one support that they required for that. As a result, they were not often invited to things, because their mum would need to attend with them. For more information on that, SCLD has published a report on relationships, which highlights that important issue.
Going back to points that were made earlier, that would be best addressed in the bill by an overarching amendment to the children’s rights scheme to make additional arrangements for children with protected characteristics, including those with a learning disability and those in vulnerable situations. UNCRC general comment 14 provides precedent for the term “vulnerable situation”, and, as Carly Elliot said, that would account for children who might not be included under protected characteristics, such as care-experienced children and young people. We would also look for part 3 of the bill, on the children’s rights scheme, to ensure specific commitments to those groups of children.
I am sorry to interrupt you, but I will ask you to pause there, because my colleagues will want to probe you further on the specific provisions in the bill. Do you have any reflections on what guidance is required for public authorities?
Guidance on working with children and young people with learning disabilities would be welcome, including particular guidance on working with children with profound and complex learning disabilities, to ensure, first, that they get the information that they need about their rights in a way that is accessible and understandable to them—and to their families, where capacity might be an issue—and, secondly, that they are supported to exercise those rights. SCLD would be happy to have input into that guidance over time.
Beth Cadger, may I bring you in on my question about the guidance that public authorities might need to ensure that they meet the duties?
Yes. Article 12 in Scotland has consistently recommended that a suite of training and awareness-raising events at all levels is required for all those who have, or who work with and for, children and young people—particularly marginalised children and young people. Those events should be on-going during and following incorporation, and children and young people, as well as those who advocate for them, should be at the heart of the design and delivery of those events.
Wider inequalities have a significant impact on the rights of children and young people. For example, structural inequalities are a continuing barrier for young Gypsy Travellers—principally, the lack of opportunities to recognise their contributions as active citizens. Digital inequality has been a huge issue during the Covid-19 pandemic. It has long been an issue for children and young people from marginalised groups, and the pandemic has highlighted how much of a barrier to participation it is. That needs to be addressed in order to allow children and young people from these groups to participate fully in the consultation on, and the shaping of, the bill. Digital inequality is a particularly prevalent problem among children and young people living in the Gypsy Traveller community.
We have some issues that might be relevant to another question about how there will be scrutiny of the media’s representation of marginalised groups of children and young people, particularly young Gypsy Travellers. That is one of the key drivers of the inequality that they face.
I will bring in Susie Fitton on the question of guidance.
I will quickly reflect on the current context. During lockdown, many of the services that disabled people rely on to support their daily living—such as social care support, physiotherapy, occupational therapy, speech and language therapy, pain management provision, child and adolescent mental health support and additional support for learning when in school—have been reduced or stopped because of lockdown or tiered restrictions. We conducted research with 800 disabled people and parents and carers of disabled children across Scotland, and we found that, in many cases, social care has been completely reduced or removed, sometimes overnight and without warning. That has been particularly extreme for children with complex support needs, or when service closure has meant that a disabled child or young person, who was previously in residential care or supported accommodation, has had to return to living full time in the family home.
I am talking about that in the context of guidance for local authorities and other public bodies because, at the moment, despite positive commitments from the Scottish Government on taking a child rights approach to the pandemic, rights are at risk. We need to have guidance around UNCRC implementation that reiterates the connections and interrelationship between the range of rights that disabled children have. They have rights not just under the UNCRC but under the United Nations Convention on the Rights of Persons with Disabilities. Even before—we hope—we incorporate the UNCRPD, we need guidance that looks at the broad range of disabled people’s rights.
Public bodies need to have training and there needs to be a programme of awareness raising about disabled children’s rights. We need to make sure that work with disabled children is conducted in a way that is accessible to them and that information about rights is accessible, because disabled children cannot exercise their rights if they do not know about them.
I echo Oonagh Brown’s point that public bodies need support to work with disabled children with profound and complex learning disability. There needs to be guidance around working with children who lack capacity to understand their rights, particularly when breaches of their rights are the result of inaction, neglect or abuse by the range of professionals who support them, because those situations are exceptionally challenging to deal with.
In short, I would like to see a suite of guidance for public authorities that allows them to work in a way that respects disabled children’s rights.
On supporting good guidance in relation to young black people and young people of colour, for the bill to reach its fullest potential, we need meaningful and genuine participation of young black people and young people of colour at the heart of decision making, before decisions have been made that affect their future. Any body that provides a service to young people and children must ensure that there is consultation with groups of young people in safe spaces.
The ambassadors’ main feedback on that issue was that education is key and that there needs to be an emphasis on providing more resources within education to enable children and young people to access their rights. Within education, we can ensure that antiracism awareness and fundamental knowledge of cultural backgrounds—not only of theirs but of others—can be instilled. That focus needs to be implemented on a national level, not just for children and young people but for those who work with them and surround them. We need to ensure that parents and families also have access to those resources, so that they can support their children in knowing and accessing their rights. That is part of empowering children to have those difficult conversations from a young age, but it is also part of protecting them and instilling in them the knowledge of their own rights.
To ensure that children’s rights are respected by the Government, schools, hospitals, the police and so on, as I said before, we must take action to dismantle the systemic racism and bias in those institutions that withholds so many of those rights. An awareness and a rich understanding of young people’s intersectional characteristics are required to truly respect them. Our institutions need black and POC consultation and training to broaden the reach of the facilities that they use to involve young people and make sure that young people who are often less heard have a voice.10:45
I will ask the same questions that I asked the first panel. The UNCRC is a living document that is added to every year with the general comments, concluding observations and optional protocols of UN rapporteurs. Do you think that section 4 on the interpretation of the UNCRC requirements should be expanded to take account of those living aspects—the general comments and concluding observations—or any other opinions or international human rights treaties? Could there be unintended consequences if the bill were amended in that way?
In a nutshell, we agree with that. To give slightly more detail, we would like an amendment to be made to the interpretation of the UNCRC requirement in part 1 for the court to consider general comments from across all UN treaties—in particular the UNCRPD—and comparative case law, other treaty body jurisprudence and relevant reports from general discussions.
We would also welcome a similar amendment being made to part 3 on the children’s rights scheme for the Scottish ministers to consider the broader general comments. For us, the Committee on the Rights of Persons with Disabilities would be of particular importance in that respect. That is critical for a number of reasons. General comments are recognised as authoritative guidance and have been by the Supreme Court on several occasions. That would ensure that children and young people with learning disabilities, alongside those with other protected characteristics, see themselves in the bill; without that, a child or young person with a learning disability may not recognise the bill as relating to them or as being helpful to them in realising their human rights.
That would help to ensure that in relation to the various rights violations that are faced by children and young people with learning disabilities in Scotland—this goes back to Susie Fitton’s point—they are considered not only as UNCRC rights holders but as rights holders of the UNCRPD. Ensuring that the general comments are covered by the bill and that there is a duty to consider them would help to future proof the bill if there was a move to incorporate the UNCRPD.
Keeping the bill live will allow for any developments that happen at the international level and will keep children and young people’s rights at the forefront of all future developments in decision making and policy in practice. As has been said, that would help to future proof any future legislation that may not be compatible with the UNCRC.
I reiterate what Oonagh Brown said. We agree with the SCLD that, currently, the bill provides that the courts may consider certain material when interpreting the UNCRC requirements. Although that direction is welcome, like many other contributors today, we believe that that misses the rich and valuable guidance that is provided in other UN committee documents, such as general comments, concluding observations, opinions made in relation to the third optional protocol and reports resulting from days of general discussion.
We believe that those documents serve an important role for disabled people, particularly disabled children, in clarifying the content of UNCRC rights, particularly in relation to articles 2 and 23, which directly relate to disabled children. They outline potential violations and offer advice on how best to comply with UNCRC obligations. However, we also believe that direct reference should be made to the UNCRPD. We encourage the committee to consider broadening section 4 to provide for the courts to be encouraged to take account of those critical sources and take the widest approach possible to ensuring that disabled children’s rights are upheld.
Afrika Priestley, did you have something to add?
It seems that we have lost our connection to Afrika. We can pick up with her again when we manage to reconnect.
I would like to ask about commencement. We are still waiting for the previous children’s rights bill that Parliament passed to be implemented, because it did not have a commencement date. Should this bill have a defined start date? If so, when should it be?
I am not aware of the point—I know that the earlier panel discussed it—but we would support speedy commencement of the bill, as we do not believe that the rights of children and young people with learning disabilities can wait. That is clearly illustrated in the evidence that we presented on the higher rates of mortality for children and young people with learning disabilities. We would therefore support the bill being commenced as soon as possible and up to six months after being passed.
Just to echo what other people—[Inaudible.]
I am sorry, Beth. Can I ask you to repeat that? We did not quite catch it.
I am sorry. Article 12 in Scotland would support commencement of the bill as soon as is humanly possible. We do not think that there should be any delay to that happening, particularly given certain current circumstances.
Given the pressing need for incorporation and all potential levers to advocate for disabled children’s rights at the moment, we believe that commencement should be as immediate as possible. We understand that public authorities, public bodies and the Scottish Government are under extreme pressure at the moment, but it is even more important in this context to have commencement by the end of 2021 at the latest. We support the comments on commencement in the first evidence session and this one.
Broadcasting are still trying to connect Afrika Priestley. Alex Cole-Hamilton, are you content for me to move on to the next questions?
Alex Cole-Hamilton indicated agreement.
Good morning. I would like to ask the same two questions that I asked the first panel. I will roll them into one, because I am conscious of time.
The first question is about the duties of a public authority. The Government’s focus in the bill is on a duty not to act incompatibly with the UNCRC requirements—it is not taking a dual duties approach. Is that something that the panel agrees with?
My second question is on the definition of a public authority. Is the panel content with the definition that is set out in section 6, or would you like that definition to be changed?
I will keep my answer to the question brief, because it was well covered in the earlier evidence session.
In our initial consultation response, we supported the compatibility duty alongside the addition of a due regard duty. We thought that that would best ensure the reactive and proactive measures in the bill. We also said that we believed that article 23, regarding disabled children,
“should be used as a framework for effective policy and decision making, rather than only as the basis for taking legal action”
“this would help ensure that the needs of children and young people with learning ... disabilities are considered at early stages in the decision making process, reducing the risk of rights violations”,
which we know that they experience frequently.
In saying that, as this is an on-going process, it is important to say that we echo Juliet Harris’s points about the other options for ways in which a dual-duties approach can be achieved—for example, through the children’s rights scheme and public bodies’ reporting duties. It is also important that that approach is achieved by ensuring that children and young people with learning disabilities are visible in the bill and through obligations regarding disaggregated data on disability.
I will bring in Beth Cadger on the duties on public authorities.
I am having trouble hearing.
Mary Fee’s question was about the definition of a public authority as it is set out in section 6 of the bill. Do you think that that needs to be expanded?
We think that it is important to include all organisations, groups and services within that definition to ensure that all children and young people receive the same protections across the board and equal provision.
If that does not happen, it could lead to patchy provision from those who work with children and young people. We need to ensure that their rights are built into all practice, decision making and delivery.
Perhaps a due regard duty would improve the bill. We would be interested to find out more about that and, specifically, how it relates to the rights of disabled children. We would like to know what a due regard duty would mean for disabled children and young people who are trying to exercise their rights and whether it is significant enough to advocate.
We agree that additions to the children’s scheme might serve the same or a similar purpose. In particular, there is a need for a public body reporting duty that makes reference to the need to report on how disabled children’s rights are being upheld.
The issue of disaggregated data has been raised before, and we agree that public bodies need to break down how their actions impact on disabled children and young people.
We would like to see disabled children and young people participating and being involved in the production of the children’s scheme.
The definition of public authorities is very important for disabled children. They are impacted by the decisions and actions of private housing providers, residential care providers, private childcare providers, private foster carers and public schools. For example, their rights can be directly breached by poor or negligent practice in relation to seclusion and restraint in private childcare provision. There is very patchy provision of adaptations in private rented housing, and there is poor physical access in schools and—in certain cases—poor provision of additional support for learning in childcare settings that are provided by private companies.
We are keen to seek assurances that such organisations will be included within the scope of the duty and that private bodies will not escape liability, should disabled children’s rights be breached. The UN committee recognises the role that private actors play in the delivery of children’s services, including education, transport, health and alternative care. We would like clarity on the definition of public authorities and assurances that the bill will ensure that disabled children’s rights are protected in those settings.11:00
Good morning, everyone. If the witnesses watched the session with the previous panel, they will know that I mentioned the issue of accessibility to the judicial system and courts, given that there will not be a new judicial body. Are courts and tribunals accessible to children as things stand? If not, what changes should be made ahead of the incorporation of the UNCRC?
The most important thing to recognise is that courts are not accessible in relation to the needs of many children and young people—and adults—with disabilities. In our initial response, we highlighted evidence around the challenges that children and young people can face in accessing justice. For example, there is a lack of accessible information on taking legal cases, there are attitudinal barriers to do with their ability to take such cases and there is a lack of specialist awareness of learning disability among legal professionals and within the courts.
In recognising that, we think that there is a role for those in the learning disability sector to be able to link children and young people with learning disabilities to legal professionals to take cases. That is a gap in the provision. As others did earlier, we would highlight the importance of advocacy and relationship-based practice within that, as well as the need for training for courts on disabled people’s rights, particularly the needs and aspirations of children and young people with learning disabilities.
Beth, Gillian Martin’s question was about the accessibility of existing courts and tribunals to children and what changes might be required to make them more accessible, whether through the bill or more generally.
We endorse the preventative approach to any rights breaches via the children’s rights scheme, impact assessments and reporting duties on public authorities. Incorporation will make for positive change in the perception of children and young people as rights bearers, and it will create a safety net around their rights and inform decision making and policy.
We hope that implementing the UNCRC will lead to less risk of rights being breached in the first place. However, Article 12 in Scotland welcomes the provisions in the bill that enable the courts to assess the compatibility of legislation with the UNCRC, and children and young people, and those who represent them, to challenge any breaches. Where it is not possible or appropriate for children and young people to raise complaints, we welcome the powers that are granted to the Children and Young People’s Commissioner Scotland to act on their behalf.
I support the points that were made by Oonagh Brown. There are long-standing barriers to accessing justice for disabled children and young people, particularly in accessing the court system, which include understanding how to navigate the system, knowledge of the law and financial costs. The issue of costs is a particular issue for disabled young children who take cases, because they sometimes have to provide a fairly costly report on the nature of their disability, which can be a legal hurdle even when legal aid is provided. It is important to understand that many disabled children and young people and their families live in poverty. That is the context in which many children and young people will contemplate entering the court system.
I echo the points that were made in the first session about the need for parallel processes to ensure that disabled children’s rights are enforced without having to go to court. Going to court should be looked on as a last resort, not as a primary mechanism for giving effect to UNCRC rights.
We would like there to be a system of child-friendly and accessible complaints procedures. That point has already been made, but I reiterate it. At the moment, the bill does not provide for that. The UN committee has emphasised the importance of the availability of independent complaints procedures and child-friendly information, as well as access to independent advocacy, which, again, has been highlighted by many contributors. Inclusion Scotland agrees with that. The need for independent advocacy is key. We urge the committee to consider how provisions on that can be strengthened in the bill—for example, through an amendment that adds a requirement on the Scottish ministers to set out a process for child-friendly and accessible complaints in the children’s rights scheme.
I understand that Afrika Priestley has been reconnected, so I will put Gillian Martin’s last question to her, and we will catch up by correspondence on those that she missed.
The question was about part 2 of the bill, and the vision that existing courts and tribunals, rather than a new judicial body, would authorise the judicial remedies that are proposed in the bill. Are those existing courts and tribunals accessible to children and young people? If not, what changes would you suggest? Should those changes be made in the bill or more generally?
Hi. Did you catch the question?
Just barely, as the connection is so bad. I am so sorry for the inconvenience. I think that there must be a real issue with—[Inaudible.]
It is not at all inconvenient to us. I wonder whether it might be more helpful for us to catch up by correspondence. I appreciate the pressure.
I think that that would be more helpful. Coming in and out and just hearing bits and bobs is quite disorienting. I would love to hear everyone in full, and to be able to make out the questions, so if it would be possible to do things by correspondence, I would really appreciate that.
It absolutely is possible to do that. We had a very good session with Intercultural Youth Scotland ambassadors, from which we got a wealth of information. However, the committee will follow up on our specific questions, so that you have an opportunity to answer them fully. I appreciate how stressful it is to pop in and out of the discussion on the wonderful technological platform that we are using.
Thank you for persevering. We will be in touch in a different way.
Thank you for having me. I look forward to speaking to you later. Goodbye.
We have just discussed the inaccessibility of courts. Earlier, I asked our other witnesses about child-friendly complaints processes in other public authorities, so I think that I know the answer to this, because certainly there was quite comprehensive agreement among them. Do you think that such processes exist? Are they child friendly and, if not, what should be done to make them child friendly?
It is important that children and young people are able to rely on the UNCRC to protect their rights in the legal system. However, it should be ensured that any complaints mechanism is child friendly, independent, accessible and free of jargon. Help, support and advocacy must be in place to help children and young people to assert their rights. Obviously, early intervention will be useful in order to stop any issues before they really start. It is important that children and young people know how to access such support, so a child-friendly model should be put in place. They also should be empowered to self-advocate where that is appropriate. We would look to the international community for guidance on that.
Probably unsurprisingly, we echo comments made by members of the earlier panel, in that we are not aware of particularly child-friendly complaints mechanisms for children and young people with learning disabilities. It is important to acknowledge that we often hear from the families of children with such disabilities that, if they want to get anything done or to have their child’s rights met, a parent has to be both willing to fight for them and capable of doing so.
In considering child-friendly complaints mechanisms, we must ask how we can level the playing field so that all children and young people have the same access. On how such processes might be developed, I suggest that we learn from the wider learning disabilities sector. Over the years, those who work with people with learning disabilities have developed good, effective ways of achieving accessible communication and of including and involving people. There is the potential to learn from that sector’s existing work.
I highlight the need to support such an approach through providing human rights education for children and young people with learning disabilities and their families. One of the greatest barriers to accessing complaints is people not knowing that they have rights or entitlements in the first place because, for so long, they have been put down or put aside. Addressing that aspect will be of critical importance.
Susie Fitton, you mentioned child-friendly complaints mechanisms in your previous answer. Have you anything further to add?
I support what Oonagh Brown has just said. We are not aware of a great body of what could be called best practice on child-friendly complaints that is accessible and suitable for disabled children, particularly those with learning disabilities. We echo the points about the need to involve the wider sector—particularly disabled people’s organisations, which have a body of experience drawn from years of engaging with disabled children and young people, and providing information in accessible and child-friendly ways. If we are committed to providing human rights education on the back of the incorporation bill, there is an opportunity here. A public education process would go hand in hand with parallel processes and the need to set up complaints mechanisms.
At the moment, our pressing concerns for the rights of disabled children and young people are on matters such as social care being removed. There are very few processes in place whereby disabled children can make effective complaints about such issues. There are no child-friendly mechanisms for them to do anything about problems that currently affect their everyday lives dramatically.
Thank you. If Gillian Martin is content with those answers, we will move on.
Good morning. My question is about court proceedings. Section 10 specifically empowers the Children and Young People’s Commissioner Scotland to raise court proceedings in respect of the duty on public authorities. More generally, section 7 says that an individual or organisation can raise court proceedings in respect of that duty. In practice, litigants in judicial review proceedings are usually required to demonstrate sufficient interest. Are you happy with the bill’s overall approach, including how the Government’s policy intention is given effect to in the wording of sections 10 and 7?
Again echoing points that were made in the earlier session, we welcome the commissioner’s role. Going back to Carly Elliott’s earlier point about cases being brought by other organisations with sufficient interest, there is a need to build capacity for learning disability organisations—and, more widely, disabled people’s organisations, as Susie Fitton mentioned—to bring such cases where appropriate. To an extent, the learning disability sector and the disability sector more widely have been left behind on how to achieve that. There is a need for upskilling in the sector.11:15
That goes back to the earlier point about where intermediary organisations might be needed to link people into legal processes, because there is quite a big jump from someone having their rights breached and dealing with that in day-to-day life to taking a case. A process might be needed to achieve that. The changes that are needed are about capacity building, the ability to bring cases and the ability to educate and inform children and young people about their rights. Those suggestions are in line with UNCRC general comment 5, which states:
“Children’s special and dependent status creates real difficulties for them in pursuing remedies for breaches of their rights. So States need to give particular attention to ensuring that there are effective, child-sensitive procedures available”.
I echo what has been said. We welcome the fact that it will be possible for cases to be brought by the Children and Young People’s Commissioner, and we support the exclusion of the victim test. Third sector organisations are very well placed to work with and for marginalised children and young people to provide advocacy. Obviously, some sort of training would be needed to ensure that that was done in accordance with best practice.
On section 10, like everyone else, we welcome the provisions that allow the involvement of the children’s commissioner. That lever has been extremely significant for disabled children and young people in the past, particularly with the commissioner’s investigation into matters such as seclusion and restraint, which are long-standing issues for disabled children and young people, and particularly for children with challenging behaviour, additional support needs and complex needs. Although it was known about for a long time and individuals and parents had been raising those issues, there had not been an effective remedy or route for redress. Therefore, the involvement of the commissioner and the investigation into seclusion and restraint were a powerful lever. We support the bill’s provisions on the involvement of the children’s commissioner.
On section 7, on the matter of sufficient interest, Inclusion Scotland is actively seeking to support disabled people, including disabled children, to access their rights, so, in partnership with JustRight Scotland, we formed the Scottish Just Law Centre. The work of the centre aims to tackle discrimination in policy and practice via strategic litigation, which is an important avenue to protect and fulfil disabled children’s rights and, in that context, we recommend that the committee seeks clarity on the provisions in the bill that relate to standing, to ensure that the bill definitely achieves its policy objective of removing barriers to disabled children’s access to justice. We welcome the removal of the victim test, but we seek clarity on whether that will enable organisations, such as JustRight Scotland, Clan Childlaw and others that support parents, carers and individual disabled children, to bring cases and allow that linkage in cases in which they are deemed to have sufficient interest.
On the time limits for bringing court proceedings, the committee has received written submissions offering mixed views on whether it is correct to exclude the period when a young person is under 18 when calculating the time limits for raising court proceedings under section 7. Do witnesses want to comment on that issue or the approach to time limits more generally, under section 7?
I will keep my answer brief, because it was well covered in the first session. It is important to say that we support Juliet Harris’s earlier point about the evolving capacity of children and young people, particularly those with learning disabilities, and extending the time limit so that people can bring cases at a later date.
We also echo those points about children and young people or their families not feeling able to raise issues, because they feel that it might have an impact on the care and support that they receive, which, for children and young people with learning disabilities, is very intertwined in their day-to-day lives. We welcome and support all those points from that earlier session.
We also support that. Vulnerable children and young people and their families might not have the confidence and capacity to bring cases as they happen, so extending the time limit is crucial to ensure accessibility for all. We believe that they should be able to bring cases when they feel ready, not just as they happen.
We agree with previous submissions and contributions in the first evidence session about timeframes for starting proceedings. Disabled children and young people are often exhausted by the systems that enable them to exercise their rights, because they are inaccessible, occasionally underfunded, disconnected from each other and difficult to navigate.
We are concerned about the meaning of the term “this Act” in section 7(1)(a). If that relates to the assessment and determination of an award of support to a disabled child and the assessment takes place before section 7 comes into force, we are concerned that disabled children and young people will not be able to bring proceedings. If it would be helpful, I can come back to the committee with a more detailed submission on that at a future date.
Thank you, Susie. That would be helpful. The Deputy First Minister will be appearing before the committee next week, so if it is possible to have the submission before then, that would assist the committee.
I will go back to the questions that I asked of the first panel of witnesses, which were with reference to the children’s rights scheme. As we indicated, there are concerns that it is not strong enough and that some of the language needs to be much stronger about what it is trying to achieve. What are the witnesses’ views on that? Is there anything that should be added to ensure that the scheme becomes stronger?
The SCLD would welcome a number of things to strengthen the scheme. I echo the earlier points around the strengthening of language, which has been relatively well covered. One of the main things that we want to see in the scheme, as Juliet Harris raised earlier, was human rights education for disabled children and young people and, in particular, children and young people with learning disabilities. As we have said in earlier sessions, young people with learning disabilities often do not know about their human rights and how to enact them.
With regard to strengthening the scheme, it would also be important to make sure that we have included the data disaggregation for children and young people with learning disabilities. We believe that, without that, it will be challenging to understand whether children and young people with learning disabilities are having their UNCRC rights fulfilled, which would further contribute to the invisibility of people with learning disabilities in published statistics. We therefore want that aspect to be strengthened in part 3 with regard to the children’s scheme and public authorities. It should include protected characteristics that are disaggregated, for example disability, which includes learning disability and physical impairment. It should provide details on the number of children and young people with learning disabilities who receive human rights education and have access to advocacy and child-friendly complaints and processes. That is in line with article 31 of the UNCRPD and should therefore be considered as a priority issue to ensure compliance with that treaty.
We were happy to see a strong stance on young people’s participation.
Introducing a children’s rights scheme will ensure that there is monitoring and evaluation of progress and compliance by all stakeholders. It is important that the monitoring and evaluation is transparent; annual reporting will make it more accessible. It will also enable dialogue with young people about what works and what should be changed, which not only will help to embed children and young people’s rights into the decision-making process, but will influence the process and ensure the participation and engagement of children and young people. There are lots of relevant third sector organisations that are well placed to amplify the voices of the young people with whom they work.
We echo what has been said on changes to the language around the scheme.
We agree with the point, which has already been raised, that it is important to ensure that all children and young people have access to rights-based education. As an example, I note that, during our most recent reporting process on our work with young Gypsy Travellers, none of them had heard of the UNCRC prior to the involvement of Article 12 in Scotland. It is vital that all marginalised children and young people, particularly groups such as Gypsy Travellers that experience difficulties in gaining access to information and in participation, are meaningfully engaged in decision-making processes.
I echo points that were made during the first session this morning about language in the bill on the children’s rights scheme. We welcome the inclusion of such a scheme, but we note that the duty to prepare the scheme under section 11(3) does not set requirements for its contents—it does not say what should be in it. Instead, section 11(3) provides that the scheme “may ... include arrangements” to ensure children’s participation in decision making, awareness raising and rights-based budgeting. The language should be changed from “may” to “shall”, to ensure that the language in the bill on children’s participation—including, obviously, disabled children’s participation—is as clear as it can be.
We welcome the duty in section 12 to consult children and young people, the Children and Young People’s Commissioner and other stakeholders. We are adamant that disabled children and young people must be properly involved in the development and review of the scheme. To ensure that, we urge the committee to consider an amendment to make all the scheme apply, as Oonagh Brown said, to children with protected characteristics and those in vulnerable situations. That point was clearly made by Together during the earlier evidence session this morning, and we support it.
What are the witnesses’ views on child rights and wellbeing impact assessments in general? More specifically, what are your views on the legal duty on the Scottish ministers to prepare such assessments for legislation and for
“decisions of a strategic nature”?
Should the ministers have discretion in that regard?
Again, I support points that were made earlier. The child rights and wellbeing impact assessments are important and valuable tools, and we support ministers having a duty to complete them as part of the children’s rights scheme.
As we stated in our response, SCLD also welcomes the commitment to extend the conducting of child rights and wellbeing impact assessments to all public authorities. Over time, we have become increasingly concerned with the quality and low uptake of equality and rights-based assessments across the board. In practice, we have seen that leading to the negative lived experience of people with learning disabilities, whose needs are often not fully addressed in those processes. When we look at the experience of children and young people with learning disabilities being restrained and excluded in schools—we heard recently about a young person with complex needs who was restrained 30 times between the ages of five and 10 in several schools—we believe that those processes are of value and are needed.11:30
However, we recognise that that might be a challenge, and we would therefore accept Juliet Harris’s suggestion that public authorities illustrate in their reporting how they have considered UNCRC rights and their implications in their planning. We would also ask for assurances that public authorities will ensure that their work is UNCRC compliant and that that will be promoted across public authorities through training.
We welcome the provisions; indeed, it is crucial that there is a duty to carry out an impact assessment on all decisions that impact on children and young people. We consider that, if the assessments are to be meaningful, they should not become a tick-box measure. They should also be published and promoted in a child-friendly format that will ensure accessibility to all the children and young people that they seek to represent.
We broadly support the provisions on the child rights and wellbeing impact assessments. We are beginning to have a degree of scepticism, which is probably related to what Oonagh Brown said about the quality and low uptake of equality impact assessments. The current context for disabled children is really important in that regard. Their rights are at risk, particularly because social care has been removed from them. We know that the Scottish Government is intent on having a child rights-based approach to the pandemic, and I suspect that public authorities are carrying out equality impact assessments of their responses. However, we are finding that, even if those things are in place, disabled children are still experiencing significant difficulties, with services being removed from them.
In that context, although we support the necessity to undertake child rights and wellbeing impact assessments, we have a concern that that alone will not impact on practice and policy in such a way that will ensure disabled children’s rights.
Fulton, do you have further questions?
I have a second question, but it is more of a summing up one. I am happy to leave it to the end—if, indeed, you think that such a question would be appropriate to ask, convener, given that the answers have been really full.
We discussed with the first panel the potential resource implications of the bill and how organisations are managing that—we heard about all the work that has already been done in that regard. Do you foresee a requirement for additional resources, given the impact of the legislation on your organisations, other third sector groups and public authorities?
We would be keen to highlight the need for resources to be ring fenced for children and young people, protected characteristics and vulnerable situations, particularly around human rights-based education.
If we take a universalism-based approach to how we achieve those things, that sometimes does not work for children and young people with learning disabilities, and they end up being left behind. We therefore want to highlight the need for ring-fenced resources for third sector organisations and for those working with children and young people with learning disabilities to help them ensure that their rights can be realised and linked into the legal system where that is appropriate.
It is important to ensure the funding for organisations that are already working with children and young people from marginalised communities. A lot of us are ready and waiting. We are already working with the UNCRC, and we are waiting to progress that work alongside the bill.
A rights-based approach could be seen as a preventive one. In the long term, if the bill is properly implemented, it has the capacity to stop a lot of issues before they become an issue, which would be more cost-effective in the long term. When it comes to the future of young people and their rights, I know that finances are a concern, but I think that they should be at the back of the decision making surrounding their—[Inaudible.]
Thank you, Beth. I ask Susie Fitton to address the question on resources, please.
We have found, particularly in our work to make disabled young children aware of their rights under the UNCRPD, that many disabled people, including disabled parents of children and disabled parents of disabled children, are completely unaware of their rights. We would encourage the committee to consider adequate resourcing to provide public information on the convention rights that is accessible and meaningful for disabled children and their families.
We would like the committee to consider recommending that sections 11(3) and 13(3), on the children’s rights scheme be amended, so that ministers are required to set out and report annually on what they are doing to ensure independent advocacy for services for disabled children, as that is a crucial part of any public information campaign and a crucial part of the support that is required to enable disabled children to access their rights. That will take resourcing.
When the work was being done to set up the new social security system for the devolved benefits in Scotland, we noted that a right to independent advocacy for disabled people claiming new devolved disability benefits was recognised by the Scottish Government as essential to the running of that system, so as to ensure dignity, control and fairness for disabled people. A similar approach should be taken for independent advocacy alongside the bill. That will have resource implications.
For Inclusion Scotland, the resource implications will concern the cost of engaging disabled children and young people in the process, given the need to use resources to provide information in accessible formats about rights and rights entitlement. Additional resourcing will therefore be needed in order to involve the organisations that need to be involved in a public education campaign.
Thank you for that, Susie.
That draws our second evidence session to a close. We have had a lot of good answers and information on areas that could perhaps be strengthened in the bill and on what more we could do to advance the rights of children and young people in Scotland.
Thank you very much for your evidence, Oonagh Brown, Beth Cadger, Susie Fitton and Afrika Priestley—and for your forbearance as we work our way round the technology. We really appreciate your time and your expertise. Any follow-up scrutiny issues will be dealt with by correspondence, which will be published on our website.
That concludes the public part of the meeting. The next meeting of the committee will be on Thursday 3 December, when we will take evidence on the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill from the Deputy First Minister and Cabinet Secretary for Education and Skills.11:40 Meeting continued in private until 11:49.
26 November 2020
Fourth meeting transcript
The Deputy Convener (Alex Cole-Hamilton)
We have received apologies from the convener, Ruth Maguire, so, as the deputy convener I am stepping in for her today. I welcome George Adam, who is attending as a committee substitute.
Our first item of business is our final evidence session on the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill. I welcome the Deputy First Minister and Cabinet Secretary for Education and Skills, John Swinney. Thank you for attending the committee this morning, Deputy First Minister. I understand that you have another committee appearance later this morning, so we will aim to conclude the session by 10:15. We have a lot to get through, but I invite you to make a brief opening statement before we move to questions.
The Deputy First Minister and Cabinet Secretary for Education and Skills (John Swinney)
I welcome the opportunity to answer the committee’s questions on the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill. As the committee has heard in previous weeks, the bill will deliver transformational change for children and young people in Scotland. I am delighted that the bill has been so warmly received and that it is widely recognised that the maximalist approach that the bill takes is the right one for children and young people.
The bill will deliver a revolution in children’s rights, requiring that children’s rights must be respected, protected and fulfilled. It will drive a culture of everyday accountability for children’s rights and will require public authorities to act consistently to uphold those rights.
As well as incorporating the UNCRC fully and directly, as far as possible, within the powers of the Scottish Parliament and ensuring that legal remedies such as strikedown and incompatibility declarators are available when breaches of children’s rights occur, the bill goes even further by including measures that will drive proactive realisation of children’s rights in practice. Those include important measures such as the children’s rights scheme, the reporting requirement on listed public authorities and the requirements for the Scottish ministers to undertake child rights and wellbeing impact assessments and to make statements of compatibility. The bill will mean that, for the first time, the Scottish Government and public authorities will be directly accountable to children and young people for their rights under the UNCRC. That accountability is important.
The impact of the Covid-19 pandemic has been felt acutely by children and young people, and it has disrupted their lives in previously unimaginable ways. The impact of the pandemic and the United Kingdom’s withdrawal from the European Union will continue to place additional burdens on children and young people—and across wider society—for years to come. The bill is essential to our recovery and to the fairer, more equal society that the Scottish Government wants for Scotland’s future. I remain committed to implementing the bill as soon as possible, and I will continue to listen carefully to the views that are expressed on such an important issue.
By requiring that children’s rights are respected, protected and fulfilled, the bill will ensure that all children and young people are supported to fully realise their potential. The bill builds on a strong foundation of respect for children’s rights across public services in Scotland. Now is the time for Scotland to join the group of nations that place children’s rights at the centre of our public services, our legal systems and, most importantly, our lives.
I look forward to answering the committee’s questions.
The Deputy Convener
Thank you, Deputy First Minister. I congratulate you on an excellent bill that has widespread support. However, there is a tinge of concern around the fact that the bill has no commencement date. The Age of Criminal Responsibility (Scotland) Act 2019, which was passed 18 months ago, is still not live and our age of criminal responsibility is still eight years old. There is concern that the UNCRC bill will dangle false hope in front of young people, who will expect it to become law as soon as it receives royal assent. Would you consider amending the bill—or allowing us to do so—to add a commencement date in short order?
There is a very active debate about the appropriate moment for commencement. As I indicated in my opening remarks, I aim to make sure that the bill is commenced as quickly as possible. I am keen to hear the views of the committee on that question, and I will actively look out for that issue in the reported feedback from the committee.
I am open to having that discussion, and I am keen to see commencement happen as swiftly as possible. The one caveat that I add to the discussion is that, when a bill of this significance is taken forward, we must be careful that we give adequate and appropriate opportunities for the necessary adaptation to be undertaken, to ensure that commencement can be taken forward within a realistic timescale. When the Human Rights Act 1998 was passed, there was—if my memory serves me correctly—a commencement period of about 18 to 24 months. I am anxious to avoid a period of that nature, but it is illustrative of the fact that, when a rights-based piece of legislation has come forward in the past, there has been an acknowledgement of the importance of ensuring adequate time for its implementation.
Nevertheless, I am open to having the discussion. I will consider the outcome of the committee’s deliberations with great care, and I will respond to that before the stage 1 debate in Parliament.
The Deputy Convener
Thank you for that answer. You mentioned the Human Rights Act 1998, for which there was a very long commencement period. However, since the Children and Young People (Scotland) Act 2014 was passed, public bodies have had to act with cognisance of what the UNCRC means, and they have had to build in reporting processes. Do you not think that a lot of the work has already been done?
That is a pretty fair point. When I look at the practical issues that might arise from the incorporation of the UNCRC, I do not see a lot of issues emerging that suggest that a great deal of adaptation of practice or legislative provision is required. However, that is our interpretation, and the bill provides for interpretation by others—principally the courts. Therefore, we are continuing to look at that, because we have to be satisfied that our legislative framework is in as good a state as I suggest that it is in.
In principle, I accept the point that you make, but we have to be careful not to move into a situation in which—as you rightly said in your original question—expectations are high but there are challenges for practical implementation with which we have to wrestle. I am committed to exploring the matter with an open mind.
The Deputy Convener
Okay. Thank you.
Alison Harris (Central Scotland) (Con)
Good morning, Deputy First Minister. The committee has heard strong views that section 4, on the interpretation of the UNCRC requirements, should be expanded to take account of the CRC general comments and concluding observations, as well as other opinions and international human rights duties. Will you consider that as an amendment at stage 2?
That issue is under active consideration. We are looking at a range of issues that have emerged around the drafting of the bill and the reactions from different interested parties, which get into the issue of what degree of detail it would be advisable, or not advisable, to have in the bill. The existing provisions touch on those issues to an extent.
The issues that Alison Harris raises are very much associated with the question of how much detail the provisions go into and how much we leave for subsequent consideration and interpretation within the strategic framework that we have established. Again, I will look carefully at what the committee determines on the subject, because I am keen to ensure that we proceed through the consideration of the bill with the objective of achieving maximum agreement on its provisions. I want to establish how we can best go about achieving that objective, and that question will be—[Inaudible.]—in the process.
Let us move on to section 10, which specifically empowers the Children and Young People’s Commissioner Scotland to raise court proceedings in respect of the duty on public authorities. More generally, section 7 states that an individual or an organisation can raise court proceedings in respect of that duty. In practice, for judicial review proceedings, litigants will also be required to demonstrate sufficient interest. Some witnesses have suggested that the drafting of section 7 could be amended to provide greater clarity on who has sufficient interest. Is that an amendment that you would consider at stage 2, cabinet secretary?
I am happy to do that. It is important that the step that we have taken in principle to enable the process of challenge to be undertaken in the format that the bill sets out is actually effective. The last thing that I want is to put into statue a provision that says that public authorities can be challenged if the practical reality is that there are too many hurdles to get over before a public authority can be challenged. That would be a, frankly, pointless provision.
I think that what we have in the bill is sufficiently workable to enable that opportunity to be taken, but parliamentary scrutiny exists to ensure that the Government’s drafting assumptions are properly and fully tested. The test that I will be applying is whether I believe that a successful challenge is possible without being undermined by too many hurdles. I think that the provision is adequate, but we will look carefully to ensure that there is nothing inherent in the drafting of the bill that would prevent the facility from being utilised by those who would wish to challenge public authorities.
The committee has received written submissions offering mixed views on whether it is correct to exclude the period when a young person is under 18 in calculating the time limit for raising court proceedings under section 7. The Faculty of Advocates raised a concern that the time limits for raising court proceedings would place an onerous burden on public authorities with regard to record keeping. What advice would be provided to public authorities on record keeping?
There are already arrangements in place for ensuring that there is record keeping of the required nature and quality, and public authorities have a duty to fulfil those. I do not envisage a situation in which record keeping becomes an obstacle to the successful application of the bill’s provisions, because our existing arrangements provide enough opportunity and resilience. Nevertheless, if a practical issue emerges, we will consider it.09:15
One of the key issues is the approach, or the response, of public authorities to the incorporation of the UNCRC in domestic legislation. Fundamentally, I want this to create cultural change as opposed to, in essence, equipping us to handle a whole series of challenges further down the road. Although, in one of my earlier answers to Alison Harris, I said that I want to make sure that any challenge, should one come, is not bedevilled by insurmountable hurdles, equally, I do not want the process to be characterised by a series of challenges. I would rather that it be characterised by cultural change in our attitudes towards the protection and assertion of children’s rights, so that public authorities are not reactively defending their practice against a challenge but are proactively changing their practice to make sure that there is UNCRC compliance. I would encourage public authorities to focus their efforts on changing the culture rather than on preparing their defences, or explanations, against challenges, should any be forthcoming.
Mary Fee (West Scotland) (Lab)
I have a couple of questions for you, cabinet secretary, the first of which is about the approach that is taken in the bill. The policy memorandum explains that two approaches could be taken to incorporation. One would be to make it
“unlawful for a public authority to ‘act in a way which is incompatible’”
with rights. The second would be to place a “due regard” duty on public authorities. The independent incorporation advisory group, which is convened by Together and the Children and Young People’s Commissioner Scotland, favours taking both approaches together in a dual duties approach. Will you explain to us why you chose the approach that makes it
“unlawful for a public authority to ‘act in a way which is incompatible’”
with rights rather than the dual duties approach?
Obviously, such questions are a matter of judgment. I feel that our approach establishes the highest standard that is possible in the process. Essentially, we are saying to public authorities that they must satisfy themselves that their approaches are fundamentally compatible with the expectations of the UNCRC.
Following on from my answer to Alison Harris, in essence, we want to create the correct cultural approach in organisations, so that they think through their practice and approach to ensure that they are operating to the highest standards that can be expected under the UNCRC. For me, that was the deciding factor in what I accept was a choice between two particular routes, each of which is equally valid. I feel that our approach will put in place the highest standard of obligation, to ensure that the interests of children are secured as a consequence of the passing of the bill.
That is very helpful. I appreciate that answer. One view that we heard in evidence is that favouring the dual duties approach would almost be like taking a belt-and-braces approach—it would leave organisations in no doubt that they have a responsibility in this area. Did you consider taking the dual duties approach simply to ensure that belt-and-braces approach?
Such issues are at the heart of the legislation and the philosophical debate around it. If I was to sit and have a discussion with myself about public authorities having “due regard to” versus their having to “act compatibly with”, I would come down on the side of their having to “act compatibly with”, because I think that that is a higher obligation than having to have “due regard to”. A duty to have “due regard to” the UNCRC would perhaps be more arguable territory, whereas a duty to “act compatibly with” it will place on public authorities an obligation that will—to be blunt—be more difficult for them to wriggle out of. My judgment is that we should establish a clear approach in trying to secure the highest standard of action.
I completely understand the belt-and-braces argument that Mary Fee has put to me regarding the dual duties approach, but I worry that that approach would not give the sharpness and clarity that I want the bill to deliver. Scotland wants its public authorities to act compatibly with the UNCRC, as that is the highest standard that we can expect.
That is helpful—I appreciate the further explanation.
My second question is on the definition of a public authority. In our evidence sessions, there has been a fair bit of discussion of how we can strengthen that definition. Some witnesses have suggested that the Scottish Parliament should be included in the definition, and the policy memorandum states that that “would be desirable”. There has been support for including the Parliament as a public authority, so I would be keen to hear your view on whether it should be covered by the bill. We have also heard a range of evidence to suggest that the definition in section 6 needs to be reviewed to take account of private and voluntary sector services that are outsourced by public authorities.
There are two important questions there. I personally favour the application of the duties in the bill to the Parliament, and that is the Government’s position, too. However, there are a couple of significant factors that we have to address. I have written to the Presiding Officer on how we advance some of those questions. First, it would, in a sense, be a bit invidious of the Government to legislate for the application of a duty to the Parliament. It would perhaps be more appropriate for the Parliament to formulate such an application in its own deliberations, and the committee may well help in that process by producing its report on these issues. It is perhaps not appropriate, in all circumstances, for the Government to put in its legislation obligations on the Parliament.
Secondly, there are some tricky and complex legislative competence issues with regard to the Parliament. The Scottish Parliament is a product of the Scotland Act 1998—it does not have the ability to amend that act and we have to act compatibly with it. It may well be that, if the Parliament was to decide to pursue that particular approach, it would have to be careful to act within its legislative competence in respect of which obligations it could take on. The committee will be familiar with the fact that we have had to craft the bill carefully to ensure that we do not move into areas where we would transgress on legislative competence on any issues around the application of the bill.
I am open to, and I support, the point that Mary Fee has put to me. Nonetheless, Parliament needs to reflect on it carefully, and there are some complex issues to be resolved. As I said, I have written to the Presiding Officer and have encouraged dialogue between parliamentary and Government officials on that question.
The second issue that Mary Fee raises concerns organisations that are acting on behalf of public authorities. It is important that any public authority that asks any other body to act on its behalf must satisfy itself that that body is acting in a fashion that is compliant with the UNCRC. The thinking behind the bill—I am clear on this point—is that a public authority cannot divest itself of, or escape, its obligations under the UNCRC and pass them on to some other body. We have to satisfy ourselves that the bill is tight enough and that its provisions are sufficiently restrictive to ensure that no arrangements enable that to happen. I will consider and follow the debate carefully to enable that to be the case.
I welcome that response from the Deputy First Minister. In relation to the guidance that is attached to the bill, would he consider putting in detailed and specific guidance for public authorities when they do such outsourcing?
Yes. I said in my previous response to Mary Fee that I want to ensure that there is no sense that those obligations can be offloaded on to somebody else. That point will have to be expressly clear in statute and in any guidance that goes with the bill. I give the committee the assurance that we will consider the bill carefully to ensure that that is the case.
The Deputy Convener
I have a couple more questions before I bring in other members. Part 2 of the bill envisages that the existing court or tribunal, rather than a new judicial body, will authorise the judicial remedies—[Inaudible.] With a couple of exceptions, the committee has heard that courts and tribunals are not accessible to children and young people. Dr Katie Boyle also suggested that the requirement for an effective remedy should be put in the bill. Would you consider that proposal at stage 2?
I am not keen on the creation of new court or tribunal infrastructure. A range of arrangements are already in place, such as the mechanism by which the voice of children and young people can be heard through the route of the Children and Young People’s Commissioner Scotland. That is designed to ensure that the provisions of the bill can properly address the issue of accessibility that you have raised.
If there are particular hurdles to children and young people accessing those remedies, I would want to, and be happy to, consider those in looking at the bill. I do not think that creating another element of court or tribunal infrastructure is a solution to that issue. I would be keener to ensure that we are satisfied that the arrangements of the court and tribunal system in Scotland today are accessible and compatible with addressing the interests of children and young people.
The Deputy Convener
Do you think that part 2 of the bill does enough to ensure that the judicial remedies that courts and tribunals can provide would be effective in practice? Will they focus on what a child or young person might want? Will they ensure changes in the public authority concerned for the benefit of other right holders in the future?
The mechanisms are there, but the earlier part of that process is more important. I would consider it a bit of a failure, frankly, if the remedy route had to be pursued. I go back to my answer to Alison Harris: I want not just a cultural, but a procedural change in public authorities to come from the passing of the bill, to ensure that children and young people do not have to seek remedies, because we will have changed our practice and approach to avoid such a necessity.09:30
To compare things with the Human Rights Act 1998, we are in a fundamentally different place today as a consequence of the passing of that act and the conduct and execution of responsibilities by public authorities as they affect citizens of our country. That is not in all circumstances because of remedies that have been sought through the courts; it is because of the adaptation of public authority practice to be compatible with that act.
That is how I am looking at the bill. I see it as an opportunity for us to make significant progress on changing the way in which public authorities act and operate. If a remedy is sought through a court or tribunal, we will have to face that, but I would rather have the cultural change than rely on a series of remedies to change the way in which we go about addressing these issues.
The Deputy Convener
Thank you. That is helpful.
Alexander Stewart (Mid Scotland and Fife) (Con)
I have questions about the child rights scheme and the wellbeing impact assessment. We have heard from many witnesses that the language in section 11(3) could be stronger—they have suggested changing the “may” to a “must”. Would you consider that?
Words such as “may” and “must” are the meat and drink of stage 2 and 3 amendments. Mr Stewart is absolutely correct that there is a world of difference between “may” and “must”, and legislators know that acutely. I am happy to consider those questions.
I hope that I have given the committee a sense that I am wedded to a maximalist approach. If there are elements where perhaps, in the use of a single word such as “may”, we are not quite as robust as we would be if we used another word such as “must”, I am open to considering that. Obviously, I will look carefully at areas in which the committee considers that the bill could be stronger to fulfil the objectives that we have set out in the policy memorandum and in our aspirations around the bill.
There have also been suggestions about amending the content of the child rights scheme as set out in the bill. It has been suggested that we make additions relating to protected characteristics; vulnerable groups; access to advocacy, legal aid and human rights education; and the idea of ensuring that there are child-friendly complaints mechanisms. Do you agree that we should incorporate some of those matters and set out the content of the scheme in the bill?
There is always a balance to be struck around the degree of specificity in the bill. Parliament wrestles with questions about that with every bill, and there is no precise or perfect answer to the question. I would like the bill to be workable and focused on leading the process of cultural change that I have talked about on a number of occasions. If we begin to get into the specification of some of the issues that Mr Stewart mentions, the bill might perhaps become too complex and prescriptive. Of course, once we put provisions into primary legislation, it is quite difficult to change them at a later stage if standards move even further ahead and we do not quite have primary legislation that requires those standards to be followed.
Part of the art of legislation involves designing principles that can establish the correct framework for the pursuance of rights, in particular, as is envisaged in the bill before us, while creating opportunities for the use of guidance or regulation-making powers to adapt and increase the obligations placed on public authorities.
Looking back over the 22 years of the Human Rights Act 1998, we would all accept that human rights law did not just change with the 1998 act; it has moved on at different incremental rates, with some significant landmark movements at some stages.
The point that I am making is that I would not want to constrain us to too significant an extent if we did not have that ability to progress the framework within which we operate.
That is crucial to what involvement children and young people will have in the development of the scheme. It is important to ensure that there is a representative for children and young people across the piece. How will that be assessed? How will that involvement be achieved?
We need to ensure that we are hearing the voices of children and young people at every stage of the development of our approach.
I gave evidence to the Scottish child abuse inquiry on Friday, and one of the points that was drawn out of my evidence by Lady Smith was that, at critical moments in addressing the concerns of survivors, it was the voice of survivors that persuaded ministers to act. We may consider areas of development where there was not progress, and we could directly attribute that to not hearing the voices of survivors.
I take that analogy into the bill in saying that we must hear the voices of children and young people on a constant basis. We must have that anchored in the bill. I give the committee the reassurance that we have been listening carefully to the views of children and young people throughout the process, and we will continue to do so.
We take that dialogue forward through a number of channels. That includes dialogue with the Children’s Parliament and the Scottish Youth Parliament, and through the very good and engaged work of Young Scot, which provides us with a ready channel of communication with young people that is actively developed on these questions. It is important that we sustain that throughout the passage of the bill, including at subsequent stages.
Why are public authorities not subject to a child rights scheme?
The answer to that lies in my answer about changing the culture, which I have been labouring all morning. The whole approach of a child rights scheme almost suggests a degree of compartmentalisation of the handling of these issues, whereas I want public authorities to be culturally ready to deliver the type of engagement and participation that is envisaged in the bill to protect the rights of children and young people. That is my primary consideration and my hope for the bill, and that is where I think we have to secure improvement instead of concentrating on the development of child rights schemes, which might potentially indicate to organisations that those rights lie in a particular compartment. I want those values and aspirations to run through public authorities on a constant basis.
Thank you, Deputy First Minister. That concludes my questions, convener.
The Deputy Convener
I will bring in Fulton MacGregor, who would like to explore impact assessments in a bit more detail.
Fulton MacGregor (Coatbridge and Chryston) (SNP)
Good morning, Deputy First Minister.
As the convener said, I want to ask about child rights and wellbeing impact assessments. The creation of a legal duty to carry out such assessments in relation to all primary legislation and most secondary legislation has been very much welcomed by the witnesses who have been before us. However, a number of them have raised concerns that ministers have discretion in relation to decisions of a strategic nature. For example, last week we heard from representatives from Together—the Scottish Alliance for Children’s Rights—the Scottish Youth Parliament, YouthLink Scotland and Who Cares? Scotland. They all fully welcomed the creation of the duty to conduct assessments but echoed calls that we have heard for the words
“as the Scottish Ministers consider appropriate”
to be removed from section 14(5). What is the Scottish Government’s position on that?
We are in territory on which I suspect that we will, when we come to stage 2, spend time in committee chewing over amendments. There might be circumstances in which we need latitude on the necessity to require that such provision be put in place. It might not be relevant to require, for some legislative instruments, the making of such an assessment if the content of the legislation simply has no relevance to or impact on the lives of children.
Mr MacGregor might fairly ask me to give him an example of that. I will give him a hint; I am sitting here thinking, “I hope he doesn’t ask me that question.” I was about to wander into that territory, but I do not think that it would be advisable for me to do so. I will simply say that the aim is to provide limited discretion where legislation might have literally no impact on children and young people and where undertaking a children’s rights and wellbeing impact assessment would be an almost tokenistic exercise.
I do not want the use of the words
“as the Scottish Ministers consider appropriate”
to be interpreted in any way as a route through which to wriggle out of responsibilities. If it were to be perceived in that way, I would look again at the provision. The aim is simply to have a section that provides us with a bit of discretion should there be no real requirement for such an assessment to be undertaken.
That is a useful clarification of the Government’s position and intention. There is a fair amount of consensus on the bill and few areas of contention, but I feel that that aspect is likely to be further explored in the stage 1 debate.
I will move on to your point about tick-box exercises, which links to my next line of questioning. What consideration has been given to extending to all public sector organisations the duty to carry out child rights and wellbeing impact assessments? Witnesses have put it to the committee that the lack of mandatory provision in the Welsh model is a weakness.
Regardless of whether undertaking such assessments is made mandatory, how can the Government ensure that they are meaningful and that carrying them out is not seen as a tick-box exercise? I ask that in relation not only to the Government, whose position you have already explained, but in relation to other public bodies. The committee has previously taken evidence on equality impact assessments, which are often carried out at a local level. Stakeholders have sometimes felt that that has been a bit of a tick-box exercise. Will you comment on that in elaborating on your previous answer?09:45
This comes down to how seriously the questions are taken by public authorities and whether assessments are truly built into the process of policy consideration. I will provide an example. Once I have finished giving evidence to the Equalities and Human Rights Committee, I will give evidence to the COVID-19 Committee about the Government’s strategic framework for consideration of the four harms of dealing with Covid. Members are familiar with it; it is an equalities and human rights-based assessment that considers the direct health impacts of Covid, of which we are all acutely seized just now.
However, it is also required that we consider other factors, including impacts on the social and economic wellbeing of individuals. Within that, we take an approach that is fundamentally based on human rights and children’s rights to considering the questions, because of the necessity to ensure that our policy-making and decision-making processes are compatible with obligations on the Government under which legislation requires that we operate.
The answer to Fulton MacGregor’s question lies in how seriously and genuinely organisations take a human rights and children’s rights-based approach to policy making and whether that is done in a fashion that is tokenistic—ticking boxes—or is built in to deliberative decision making.
In the process that we are going through on reconciliation of issues in the Covid strategic framework, such matters are wrestled with at every turn as we make individual decisions. This is about creating a climate and culture in which that happens. To be fair to public authorities, a lot of that work is nowadays part of their firmament; it is part and parcel of existing arrangements. However, the bill seeks to place a formal obligation on public authorities to ensure that that is the case.
That is a helpful answer. You are right: whether assessment is mandatory or not, it is down to the public bodies to ensure that it is not a tick-box exercise. That goes back to what you said about changing the culture. Our hope—that of all political parties and stakeholders—is that the bill helps to do that.
Are there any plans for education or training of staff who will be involved in child rights and wellbeing impact assessments? Has that been thought about yet?
That will have to be part of the operating culture of organisations, because organisations must have personnel who have the skills, perspective and outlook to ensure that issues are handled properly and that processes are gone through properly and meaningfully to inform policy making. A lot of good work already goes on in that respect, but we have to be assured, and public authorities will have to assure themselves, that they have the capacity to do that.
The Deputy Convener
I was thinking about the Deputy First Minister’s struggle to find a bill to which a child rights and wellbeing impact assessment might not apply. I am sure that Mary Fee, who is a veteran of private bill committees, might have a suggestion. Perhaps the Pow of Inchaffray Drainage Commission (Scotland) Bill was one such bill.
George Adam has a supplementary question on Alexander Stewart’s line of questioning.
George Adam (Paisley) (SNP)
Thank you, convener. I do have a supplementary question on Alexander Stewart’s questioning, and I will not take personally the fact that you dinghied me.
Good morning, Deputy First Minister. Alexander Stewart asked about stakeholders wanting more in the bill. In my time in Parliament, that has always been the case. With every single bill, stakeholders ask—as is their right—for things to be included. Sometimes it happens and at other times it does not.
Is not it the case that we need to find a way to get the balance right, to make the bill workable and to make sure that it delivers what it says it will deliver? Sometimes, I feel that the committee gets so caught up in the bubble of the bill that is being considered that we lose sight of the delivery model that we are looking for. Is not it the case that we need to strike that balance? That is the $64,000 question.
That is correct. Any bill requires careful judgment of the degree of prescription that is involved in the creation of new law, and Parliament is free to decide exactly how prescriptive it wishes to be. Mr Stewart’s suggestion of changing “may” to “must” might sound to people like the choice between a three-letter word and a four-letter word, but there is a world of a difference between “may” and “must”. There are fine judgments to be applied. Sometimes, we legislate in a prescriptive fashion and then find, a couple of years down the track, that that degree of prescription is too much. There is a debate to be had, but it helps if we have an open and frank discussion about those questions at this stage of proceedings, when the committee is gathering evidence and reflecting on it.
I hope that the committee is assured that I will take seriously the contents of its stage 1 report. It will inform my thinking on our stage 1 response and on any subsequent stage 2 amendments that the Government lodges. It will inform our reaction to stage 2 amendments that are lodged by members as part of the committee’s processes and, subsequently, at stage 3.
In all that, we have to focus on the question that Mr Stewart and Mr Adam have raised about the right degree of prescription to have in the bill. There is no precise answer to the question, but, if we do not get it right, we could end up with a bill that is too long and detailed and that is cumbersome and difficult to implement, or with a bill that is too short and thin and not definitive enough to secure the change of practice that we aspire to. Between those two options is where we get it right.
Gillian Martin (Aberdeenshire East) (SNP)
Good morning, Deputy First Minister. In one of your answers to Mary Fee, you mentioned potential issues with legislative competence and, for existing legislation, the strike-down declarator that can be made when something is incompatible with the UNCRC. You mentioned that you have written to the Presiding Officer on that. It has been flagged up by legal experts who have appeared at committee. It was suggested that that be put to constitutional lawyers—in particular, in relation to the incompatibility declarator for future legislation, in case it clashes with the Scotland Act 1998.
If you have further detail to add, I will be happy for you to do so. However, if your answer to Mary Fee is the long and short of it, I will move on to other lines of questioning. Is the issue being considered by constitutional lawyers ahead of stage 2?
There is an issue of legislative competence that must be carefully navigated. In formulating the bill, I have been explicit that there are aspects of the UNCRC that we cannot put in domestic law because of limitations in our legislative competence.
Based on its existing provisions, the bill has been certified as having legislative competence—we are confident about that. However, we have to be careful, and the issue will have to be handled with great care when it comes to stage 2 and stage 3 amendments. I do not think that we would have to go very far to reach territory in which legislative competence might be contested.
The committee knows where I am coming from politically and what my aspirations are, but I have to make sure that we are careful about how we construct stage 2 and stage 3 amendments, in order to keep them within legislative competence.
To go back to the deputy convener’s opening questions about commencement dates, the last thing that I want is for Parliament to pass the bill, and for it then to be referred to the Supreme Court by the Advocate General. We want to avoid that happening because of a legislative competence issue, so we must tread with care.
There is a slightly different issue regarding matters that I have written to the Presiding Officer about, which are essentially about the application of the bill to the Scottish Parliament. My judgment was that it would be impertinent for the Government to suggest what Parliament’s reaction to the issues should be and that it is really for Parliament to consider them. The committee might well have something to say about that in its report.
In relation to the incompatibility declarator, a mechanism is in place that will allow the approaches that I specify in the bill to be taken, to ensure that our objectives are taken forward. I am confident that those provisions are robust.
Thank you for the explanation.
In part 4 of the bill, there is a requirement that all Government bills contain a statement on compatibility with the UNCRC. Why does the requirement not apply to members’ bills?
That would perhaps get us into the territory of constraining the rights of Parliament. Your question is tied up with my thinking about the role of Government in specifying what Parliament can include in its legislation. Members of the Parliament are obviously free to address that matter when we consider amendments.
On section 23, there was a difference of opinion among legal experts on the duty to report. I am not sure whether you saw the previous evidence sessions, but a couple of legal experts said that the duty to report should be strengthened to make it a duty to take action. That was not the unanimous view—there were conflicting opinions. What is your view on that point?
My sense is that section 23 provides for a combination of the obligation to report and the action that flows from it, which is to engage with Parliament. If there was a requirement to change legislation or to take any other action, that would flow from the obligation to report to Parliament. In essence, the section delivers what colleagues are looking for, which is a route to ensure that, if there is an issue, it can be addressed. It would then be for Parliament to decide how it would be addressed.10:00
That brings us back into the territory of how much we specify in the bill. On the particular issue in Gillian Martin’s question, we might design and specify a provision in the bill and then, a year down the track, find ourselves with another scenario that does not quite fit the picture. The drafting of section 23 creates a framework within which action can be taken should there be a strikedown or an incompatibility declarator.
On the discussion about child-friendly communication in reporting, Together suggested that the duty to report should include the duty to report in a child-friendly way. Is the Deputy First Minister open to that?
Yes, very much so. That is at the heart of the dialogue and the relationship that we have with a number of children’s rights organisations. A lot of those considerations flow to us through the work of the children’s panel, although not exclusively, because we are in dialogue with many other organisations in taking these matters forward. As a group of legislators, we are able to go through complex discussions and to wrestle with the virtues of “may” versus “must” at different stages. At the end of the process, that must be translated into a meaningful message to children and young people, so that they know what their rights are and how to pursue their rights and so that we ensure that they are properly supported and treated in society. We must move from a challenging and difficult-to-navigate piece of legislation—because that is what legislation is—to communication that can be understood, valued and appreciated and which is meaningful for children and young people. Therefore, I am happy to confirm that point.
Thank you for confirming that, because, at the many outreach events that I have been to with young people, that has been a key theme: they want to know their rights, and those rights have to be communicated in a child-friendly way.
My last question is on the resourcing to support public authorities to carry out the bill’s policy aims. Can you explain the three-year implementation programme and how that will be resourced?
It will be resourced to ensure that, in essence, public authorities do not have to reinvent the wheel. The programme will provide approaches, materials and interventions to enable public authorities to be clear about and aware of all the issues with which they must wrestle and to ensure that those are reflected in the priorities that they take forward. We will work closely with a range of public bodies to ensure that that is the case, through the provision of materials, training interventions and other such support, so that their needs are properly and fully taken into account.
Convener, I said that that was my final question, but I have a supplementary question on the back of the Deputy First Minister’s answer. We have talked about child-friendly communication. It might not be in the bill, but has an assumption that there will be a duty on all public authorities to have child-friendly communication on children’s rights been factored into the resourcing?
Essentially, that underpins the approach that we will take to the direct communication on and explanation of the provisions in the bill. It is also an implicit assumption in what I consider public authorities should be doing in the ordinary course of their activities.
With regard to the discrete financial provisions of the bill, we will spend a relatively small amount of public money, in the grand scheme of things, on the promotion of awareness of children’s rights. We spend an awful lot more money as a society on the delivery of public services as they affect children. We have to ensure that, in their delivery of services and in the determination of priorities during their on-going activities, public bodies take due account of the requirement to act compatibly with the bill. They have to ensure that they configure their approach and provisions to be compatible with those of the bill.
The Deputy Convener
No other member wishes to ask questions, and I understand that the Deputy First Minister is keen to get to his next evidence session, so I thank him for coming to see us today and for answering our questions. We are grateful.10:06 Meeting suspended.
10:08 On resuming—
The Deputy Convener
Our second item of business is feedback from members on the virtual engagement sessions that we conducted to inform our scrutiny and consideration of the bill. We held several virtual engagement events during October and November that children and young people’s groups facilitated. On behalf of the committee, I thank those who facilitated the events and, in particular, the children and young people who participated.
Notes on some of those events have already been published on the committee’s web page, and more will be published shortly. Due to other commitments, not all committee members were able to attend the events, but I invite those who did to bring their thoughts to the committee now.
I will start with a brief reflection on my attendance at the Aberlour guardianship group event with a number of committee members, who might wish to reflect on it as well. The group was made up of young unaccompanied asylum seekers. It was a great event, which was conducted in four different languages, so my thanks go to the translators who kept us right throughout and gave us a glimpse into international diplomacy. It was very inspiring. It gave me an indication of how important rights are in every language and culture and how informed young people are, particularly those who have come to this country in the most critical and desperate circumstances. They have come here equipped with knowledge of their rights, and that is because the UNCRC is global, does not recognise barriers or languages and is something that people have an innate understanding of. That is very helpful.
I attended several events, and I will speak to them very generally. They were all very helpful. I encourage anyone watching this to check the record of those events. I attended the same event as you, deputy convener, and I agree with your sentiments. The young people who were there had the opportunity to tell us how the bill would affect them. It was very clear that they wanted the bill to be introduced and believe that it will enhance their lives and rights. We have a duty to make sure that that happens and that the bill is as good as possible.
I also want to say that our convener, Ruth Maguire, who is not here today, attended all the events—and there was a significant number of them.
I thank the outreach team and the clerks who organised an enormous amount of events. The convener attended every one of the events and she has to be commended for that.
I went to four very different events with different demographics of young people and children. I went to one with members of the Scottish Youth Parliament and YouthLink Scotland and another with Who Cares? Scotland and care-experienced young people and children. The event that really brought a smile to my face was the one with the under-12s, Licketyspit theatre company and Barnardo’s. It was held on a Saturday morning and it was delightful. The work that has been done with very young children to help them to know their rights is really imaginative. As the bill becomes law, a lot more of that will be rolled out to enable young people to know their rights, but in a fun way. It was terrific.
I want to echo what the convener and Fulton McGregor have said about the session with Aberlour guardianship and the asylum-seeking young people. I asked the Deputy First Minister about child-friendly communication; it will be important to have communication in the languages of the young people that we look after in Scotland who have come from other countries, particularly those who were unaccompanied, to ensure that they know their rights, too. The same goes for the care-experienced young people that I spoke to. Knowing that it is a law is a very big deal to those young people. We had some testimony from young people who felt that their rights had not been respected in the past. They said that knowing that the UNCRC is in law is important but that the communication so that they know their rights and how to exercise them is fundamental. My thanks go to all the young people I spoke to, whose comments were very helpful for my thoughts on the importance of the bill.
The Deputy Convener
Once again, I thank everyone who participated in those events. I also note the number of responses to our call for views, which was directly and specifically focused on children and young people, to complement the standard call for views. We have had 40 responses in total from, or on behalf of, children and young people. That is a significant and encouraging rate of response, as it is the first time that any parliamentary committee has issued such a call for views. It demonstrates how engaged our young people can be when given the opportunity. We hope that some of those suggestions, ideas and drawings will feature in our report.
3 December 2020
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3 December 2020
What is secondary legislation?
Secondary legislation is sometimes called 'subordinate' or 'delegated' legislation. It can be used to:
- bring a section or sections of a law that’s already been passed, into force
- give details of how a law will be applied
- make changes to the law without a new Act having to be passed
An Act is a Bill that’s been approved by Parliament and given Royal Assent (formally approved).