Revised legislative proposals to enshrine children’s rights into law in Scotland could leave “significant gaps” in their legal protection, it has been warned.
MSPs in Holyrood agreed to reconsider the legislation which will incorporate the UN Convention on the Rights of the Child (UNCRC) into Scots Law.
The Bill initially passed unanimously in 2021 – however, the Supreme Court ruled certain aspects of the proposals were ruled not to be within the Scottish Parliament’s legislative competence.
In narrowing the Bill to allow its potential progression through Holyrood, Social Justice Secretary Shirley-Anne Somerville said public authorities will only be required to comply with the requirements of the UNCRC when delivering duties under powers set by an act of the Scottish Parliament.
If passed, Scotland will be the first part of the UK to incorporate the UNCRC into domestic law.
However, in a letter to the Equalities, Civil Justice and Human Rights Committee, councillor Tony Buchanan, who is the children and young people’s board spokesman at local authority umbrella body Cosla, warned over the implications the amendments could have for legal rights in relation to care and protection.
It would mean councils would not need to incorporate the legislation when delivering duties under UK acts of parliament.
Mr Buchanan warned that the approach would “add substantial complexity to the legal position and nature of legal duty on public authorities” due to the concurrent nature of legislation passed in Scotland and Westminster.
He said: “The approach being taken will leave significant gaps in terms of legal protection of children’s UNCRC rights, including key areas where rights may be at most risk of infringement and where children and young people would expect their legal rights to apply, for example in relation to care and protection and education.
“This risks creating a significant gap between expectations and the practical reality, as the exclusion of key powers and functions from the scope of legislation would mean the practical impact of the change will be significantly more limited than was originally intended and expected.”
He also highlighted “significant concerns” around the workability and practical implementation of the proposals in terms of staff to interpret and implement the duties in practice, while families may struggle to understand their rights.
To address the confusion, Mr Buchanan said a “very clear public message” is require to outline “the limited coverage the UNCRC legislation will have in terms of public authority functions and what this will mean in practice.”
Social Justice Secretary Shirley-Anne Somerville said: “There are gaps in legal protection and that is solely down to the limited powers of the Scottish Parliament. If we could have gone further, then we would have done so.
“In amending the Bill, I have had to strike a difficult balance between protecting children’s rights to the maximum extent possible within the current powers of the Scottish Parliament, minimising the risk of another referral to the Supreme Court, and making the law as accessible as possible.
“The most effective way to protect children’s rights, within devolved powers, is for the duty to comply with the UNCRC requirements to apply only when public authorities are delivering duties under powers in an Act of the Scottish Parliament.”
She added: “Without the political commitment of the UK Government to legislate for children’s rights, we are limited in what we can achieve.
“An independent Scotland would face no such constraints. Within current constitutional arrangements, the simplest way to secure the greatest protection for children’s rights would be for our counterparts in Westminster to incorporate the UNCRC into UK law.
“Sadly, they have shown no appetite for doing so.”
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