Message to children and young people from Cabinet Secretary for Social Justice
Dear Children and Young People of Scotland,
I wanted to provide you with an update on the progress that we, the Scottish Government, are making to give legal protection for children’s rights in Scotland. This includes your right to express your views on matters affecting you and for those views to be given due weight.
We have been trying to achieve this by making a new law in Scotland called the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill (or the UNCRC Bill for short). Our aim was to make it against the law for anyone who is providing public services, such as education or health care, to act in a way that prevents you from enjoying your human rights as set out in the United Nations Convention on the Rights of the Child.
The UNCRC Bill was passed in March 2021 but couldn’t become law because the Supreme Court – the highest court in the United Kingdom – judged that the Scottish Parliament didn’t have the powers to do all of the things it wanted to in the Bill.
Since that court judgment, the Scottish Government has been thinking carefully about how it can fix the Bill so that it can be passed again and become law. This has taken longer than we hoped because there were lots of things that we needed to think about. We needed to fully understand:
- how the judgment changed our understanding of what we could do
- how changing the Bill might impact on your ability to claim your rights and
- how we could make those changes without making the law too complicated to understand
I’m pleased to tell you that the Scottish Government has now published its ‘amendments’ (changes to the Bill), and that the Scottish Parliament has agreed to look at these.
If the Bill is passed, it will make it against the law for your rights not to be properly respected when a public service is being delivered under a law made in Scotland. If your rights are not being respected in these circumstances, you would have a new ability to ask a judge to enforce your rights.
We also wanted to make it against the law for your rights not to be properly respected when public services are being delivered under a law that was made by the UK Parliament. We wanted to do this because there are some laws that were made by the UK Parliament a long time ago about things that are now the responsibility of the Scottish Parliament. These laws were made before the Scottish Parliament existed and are still relevant to things like the delivery of education and health.
Unfortunately, after thinking about it very carefully, we’ve reached the conclusion that the UNCRC Bill should not cover UK laws, even if they cover things that the Scottish Parliament can normally make laws about. This is because the only way we could do this would make the legislation too difficult to understand and because it might mean that the Bill couldn’t become law. This will mean that the new ability to use the courts to enforce your rights would not be available when you experience a rights issue while receiving a service provided under a power made by law passed by the UK Parliament.
There are a lot of public services in Scotland that are provided under laws made by the UK Parliament so the Scottish Government is disappointed that it can’t provide legal protection for your rights in these circumstances. The simplest way to make that happen would be for the UK Parliament to pass a Bill that provides legal protection for children’s rights when public services are delivered under its laws. On your behalf, I will continue to ask the UK Government to create a law to achieve that.
Even if the legal protections don’t cover everything that public services in Scotland do, we hope that the Bill and the other work that we’re doing will help to change the way that people think about children and young people when they’re delivering all public services. We’re trying to achieve that by, for example, helping public services to assess their own approach to children’s rights and by ensuring that you understand your rights so that you’re able to speak up when your rights are not being made real.
The UK agreed to the UNCRC over 30 years ago, which means that regardless of the source of their powers, public authorities should already be able to take a child rights-based approach in the delivery of all services. If you have any concerns that a public authority is not doing this, you already have an ability to complain and we’re trying to ensure that the system for raising a complaint is as child-friendly as possible.
If you want to learn more about your rights, there’s really clear information on the Children and Young People’s Commissioner Scotland website.
You have been clear that you want legal protection for you rights and the Scottish Government remains absolutely committed to achieving this as best it can and to ensuring we are a country that respects, protects and fulfils children’s rights.
We’ll provide you with another update about progress with the Bill and the other things we’re doing to protect your rights on World Children’s Day on 20 November
Cabinet Secretary for Social Justice Shirley-Anne Somerville MSP