The bill to incorporate the United Nations Convention on the Rights of the Child (UNCRC) into Scots law should be given a wider scope, a committee of MSPs believes.
In its stage 1 report on the Scottish Government's bill, the Scottish Parliament's Equalities & Human Rights Committee unanimously concludes that while it supports the general principles of the bill, it should be extended to include private sector and voluntary organisations who deliver public services.
That would ensure that organisations such as private schools and private housing, residential care and childcare providers are not excluded from the legal obligations in the UNCRC.
The United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill legally obliges public authorities – including Scottish ministers – to respect children and young people’s rights, placing them under a duty not to act incompatibly with the UNCRC.
Children and their representatives would be able to challenge public authorities in court for infringing their rights, and the courts would have power to strike down legislation that is incompatible with any UNCRC requirements.
MSPs on the committee recommend that the Scottish Government consults the main stakeholders to investigate how the definition of a so-called "hybrid public authority" could be tightened to avoid similar issues arising as those experienced with the Human Rights Act 1998, where courts have defined the term narrowly and exempted private or voluntary bodies which carry out public functions.
They also report concerns raised in evidence about the accessibility of courts and tribunals to children, and call on the Lord President to reflect on this and to provide an update on progress towards developing a child-friendly court system in preparation for the legislation.
In other recommendations, the MSPs:
- urge the Scottish Government to amend the bill so that courts and tribunals “must”, rather than “may”, take into account the whole of the text of the UNCRC and the first two optional protocols, and require to ask for the child’s views on what would constitute an “effective remedy” in their case;
- recommend that the commencement provision be amended at stage 2 to ensure the bill comes into effect six months after Royal Assent;
- call for the proposed Children’s Rights Scheme that ministers would have to make, setting out how they will comply with the UNCRC duties, to be strengthened to include measures to support children with protected characteristics and vulnerable groups, access to advocacy, legal aid, human rights education and a child-friendly complaints mechanism.
Committee convener Ruth Maguire MSP commented: "This is a landmark piece of legislation which has the potential to put children's rights at the heart of public authority decision-making. However, we believe – as the evidence to the committee has shown – that there are areas where the bill can be improved."