Overview of the Act Part 1 and the Schedule: the Uncrc Requirements Section 3: Power to modify the schedule
11.Section 3 gives the Scottish Ministers the power, by regulations, to modify the terms of the schedule, which sets out the text of those parts of the Convention and its optional protocols that are comprehended by the label “the UNCRC requirements”. By changing the terms of the schedule, the Scottish Ministers can therefore change what is required of those public authorities that the later Parts of the Act oblige (when exercising certain functions) not to act incompatibly with the UNCRC requirements.
12.The Scottish Ministers’ regulation-making power to change what constitutes the UNCRC requirements is subject to limitations. Provisions from the Convention and its first and second optional protocols that are already in the schedule cannot be removed. In relation to those sources, regulations can only add provisions not already included or make adjustments to reflect amendments to the treaties on which they are based.
13.The power to make changes to reflect amendments to the treaties can only be used to reflect amendments that are binding on, and in force in relation to, the United Kingdom as a matter of international law. Regulations modifying the schedule to reflect a treaty amendment can be made in advance of that amendment coming into force in relation to the United Kingdom, provided that the modification provided for in the regulations does not take effect before the treaty amendment enters into force.
14.The Scottish Ministers can also exercise the power to change what constitutes the UNCRC requirements to take account of optional protocols to the Convention other than the first and second (which are already covered by the schedule). The power to do so is restricted so that the schedule can only be modified to take account of protocols that have been ratified by the United Kingdom and the modifications cannot take effect until the protocol in question has entered into force in relation to the United Kingdom.
15.Sections 1, 4 and 15 specifically refer to the Convention and its first and second optional protocols. So if, for example, the schedule were to be modified by regulations to incorporate obligations arising from the third optional protocol, sections 1, 4 and 15 would need to be adjusted too in order to refer to that protocol. Section 3(5) enables the Scottish Ministers to make such changes to sections 1, 4 and 15 by regulations. There may also be a wish to include a definition in section 42, so that section may be amended too.
16.Regulations under section 3 are subject to parliamentary scrutiny by way of the affirmative procedure, which is set out in section 29 of the Interpretation and Legislative Reform (Scotland) Act 2010. It means that the regulations cannot be made unless the Scottish Parliament approves a draft of them. Section 3 further provides that draft regulations cannot be laid before the Parliament until the Scottish Ministers have consulted the Commissioner for Children and Young People in Scotland, the Scottish Commission for Human Rights and any other persons they consider it appropriate to consult.