What did the Cabinet Secretary say in her update to Parliament on the UNCRC (Incorporation) (Scotland) Bill?

On 27^th June 2023, the Cabinet Secretary for Social Justice, Shirley-Anne Somerville, provided an update to the Scottish Parliament on the UNCRC (Incorporation) (Scotland) Bill.  The Cabinet Secretary restated the Scottish Government’s commitment to incorporate the UNCRC into Scots law and said it had been working on amendments to address the Supreme Court’s judgment and engage with UK Government lawyers.

The Cabinet Secretary’s update focused on the compatibility duty in the Bill – that is the duty on public authorities not to act in a way that is incompatible with the UNCRC. She outlined the importance of balancing three considerations:

• maximising the protection of children’s rights
• minimising the risk of another referral to the UK Supreme Court
• making the law accessible.

In light of the UK Supreme Court judgment, the Cabinet Secretary outlined efforts that had been made to ensure the compatibility duty could apply to Acts of the UK Parliament that now fall within devolved areas (for example UK laws about education that were passed before the Scottish Parliament was established in 1999). She said efforts had been made to bring these UK Acts within the scope of the compatibility duty unless they were written in such a way that required public authorities to act incompatibly and could not be interpreted in any other way.  Whilst Scottish Government believes such an approach could be within the powers of the Scottish Parliament whilst satisfying the UK Supreme Court judgement, she said that UK Government lawyers had not been able to guarantee that this or other proposals would render the Bill safe from further challenge in the Supreme Court. 

The Cabinet Secretary said that she thinks the best way forward is to only apply the compatibility duty to Acts of the Scottish Parliament. She recognised that this approach would result in a loss of coverage for the Bill as it would mean UK laws in devolved areas would fall outwith its scope. This includes UK legislation which is highly relevant to children’s rights such as the Education (Scotland) Act 1980 and the Children (Scotland) Act 1995.

The Cabinet Secretary maintained that the proposed amendments would still provide valuable protections for children’s rights and lay a solid foundation for future legislation.  She expressed the importance of political commitment at the UK level to incorporate the UNCRC into national legislation, as recommended by the UN Committee on the Rights of the Child in its Concluding Observations to the UK earlier this month. She said she would write to the Secretary of State for Scotland to update him on the Scottish Government’s proposals and to urge the UK Government to bring forward its own legislation for incorporation at UK level.

What does this mean?

The revised approach that’s needed for the UNCRC (Incorporation) (Scotland) Bill will mean that all Acts of the Scottish Parliament will be included in the ‘compatibility duty’ and children and young people will be able to access remedy and redress if their rights are breached.  It will also mean that the Children’s Rights Scheme will continue as originally planned, ensuring that Scottish Government has to set out the steps it has taken and is taking to embed children’s rights into decision-making, including child rights budgeting, supporting children whose rights are most at risk, undertaking child rights impact assessments and involving children and young people in decision-making.

However, it will also mean that Acts of the UK Parliament cannot be included in the ‘compatibility duty’ even if they cover matters that are now devolved to Scotland. 

Together – and the UN Committee on the Rights of the Child –  have already raised concerns that some of Acts of UK Parliament are not compatible with the UNCRC, for example:

• The Education (Scotland) Act 1980 omits to provide children with the independent right to withdraw from religious observance.
• The Marriage (Scotland) Act 1977 falls short of the international standard that the minimum age of marriage should be no lower than 18 years old.
• The Criminal Procedure (Scotland) Act 1995 allows for children aged 12 and over to be given life imprisonment.

In addition, the revised approach means amendments that the Scottish Parliament has made to Acts of the UK Parliament cannot be included. An example of an amendments made to an Act of the UK Parliament is section 13 of the Children (Scotland) Act 2020 which amended the Children (Scotland) Act 1995 by requiring public bodies to promote sibling relationships between Care Experienced children.

The following infographics summarise these impacts and how the revised approach compares to the approach of the Bill in its original form:

What more can Scottish Government do to make sure children’s rights are protected to the maximum extent possible through the UNCRC Bill?

Even though the scope of the Bill has had to be reduced to only include Acts of the Scottish Parliament, there is a significant step that Scottish Government can take to mitigate against the impact of this change. For over a year, Together has been calling on Scottish Government to undertake an audit and ongoing review of the compatibility of all Acts of the UK and Scottish Parliament that fall within the devolved competence (see recommendation 5).  This would make sure that we know where laws fall short of the standards in the UNCRC and would show Ministers where laws need to be changed or amended to ensure children’s rights a properly protected.  We have urged the Scottish Government to take a three-step approach to this work:

1. Identify Acts of the UK Parliament (and amendments to Acts of the UK Parliament) that are within devolved powers and impact on children’s human rights.  Make necessary amendments to bring them into the scope of the UNCRC (Incorporation) (Scotland) Bill.
2. Commission a comprehensive audit of the extent to which all devolved legislation complies with the UNCRC requirements (to include Acts of both the UK and Scottish Parliament). This could look like a similar audit that took place in Jersey
3. Make amendments identified through the audit. Review and update the audit on an ongoing basis through the Children’s Rights Scheme taking into account evolving international standards and recommendations from the UN Committee on the Rights of the Child

In doing this, Scottish Government can live up to its commitment to a maximalist approach to  protecting children’s rights through the UNCRC (Incorporation) (Scotland) Bill and ensure that all matters devolved to Scotland that impact on children’s rights are covered by the protections of the Bill.

The Cabinet Secretary referred to Together’s calls for an audit in her update. She did not make a commitment to take forward such an audit, and instead said that she would consider the request carefully in light of the timing and impact on the legislative program.

When will the UNCRC Bill finally become law?

The Cabinet Secretary said she intends to begin the process of parliamentary consideration for the revised UNCRC (Incorporation) (Scotland) Bill after the summer recess.  She also said she hoped to see ‘progress with working through the Bill before Christmas’.

Firstly, the Cabinet Secretary will need to confirm with the Scottish Parliament that Scottish Government’s proposed amendments are within the competence of the Scottish Parliament.  She will then need to put forward a motion to Parliament to agree the reconsideration of the Bill.  The Scottish Parliament will decide the level of scrutiny that the amendments will need and this will impact how long it will take for the amendments to be passed by Parliament.

The Bill has a commencement date of six months after Royal Assent although there have been calls from the former Children’s Commissioner, Bruce Adamson, to bring the Bill into force as soon as it gets Royal Assent.   Whilst it is difficult to know exactly how long it will be before the UNCRC becomes binding in law, we hope and expect that it may come into force within the next year.

• Watch the video recording of the Ministerial statement here.
• Read the transcript here.