Scotland taking a child rights based approach further than ever

by Dragan Nastic, Strategic Lead - UNCRC, UNICEF UK Blog, Blog, By invitation, In focus: domestic implementation of universal norms, Uncategorized @nyc

On 2 September: “The United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill” was tabled in the Scottish Parliament to incorporate the UN Convention on the Rights of the Child (UNCRC) into Scots law. This is a significant moment in realising a widely shared vision of ensuring all children and young people growing up in Scotland have their human rights respected, protected and fulfilled. Children, young people, their families and wider civil society, including UNICEF UK, have been working towards UNCRC incorporation for very many years. The journey began back in 1991 when the UK first ratified the UNCRC, placing a duty on Scotland to give effect to the UNCRC under international law. Over the following 29 years, there have been many more important milestones, including the Children and Young People (Scotland) Act 2014.

UK is a so-called dualist country where international treaties such as the UNCRC do not automatically become part of domestic law on ratification. Incorporating the UNCRC into domestic law in Scotland in this way does require domestic legislation. The overarching intention of the Bill is to embed the rights in the UNCRC into the law in Scotland. This will further ensure that children’s rights are woven into policy, law and practice in Scotland and enable children to rely on their rights in the domestic courts.

Direct incorporation is the shorthand for a method of incorporation that takes the content of an international convention and gives it effect in domestic law – in this case of Scotland by lifting the wording from the UNCRC and putting it into domestic law. In the UK context, this is the approach taken by the Human Rights Act 1998 with regard to the European Convention on Human Rights. Direct incorporation in this way means that rights-holders can simply refer to the text of the international convention (in this case the UNCRC) to identify the rights which form part of domestic law. Under this approach, the Bill would set out a framework of duties and requirements which would apply to the rights, as set out in the UNCRC and optional protocols, and would introduce remedies in the domestic courts for enforcement of those rights.

The Bill

The UNCRC (Incorporation) (Scotland) Bill will make it unlawful for public authorities to act incompatibly with the UNCRC, giving children, young people and their representatives the power to go to court to enforce their rights.

The Bill:

  • directly incorporates the UNCRC as far as possible within the powers of the Scottish Parliament
  • makes it unlawful for public authorities to act incompatibly with the incorporated UNCRC requirements
  • requires that, so far as possible, legislation is interpreted in a way that is compatible with the UNCRC. It includes powers to allow the courts to strike down incompatible legislation.
  • contains specific measures to remove barriers which children and young people may face in realising their rights and in accessing justice. These include provisions ensuring that claims are not timed barred during childhood
  • gives power to the Children’s Commissioner to take legal action in relation to children’s rights
  • requires Ministers to produce an annual Children’s Rights Scheme – a report that sets out how they comply with children’s rights
  • requires listed public authorities to report every three years on how they comply with children’s rights

The Bill and the accompanying documents can be found on the Scottish Parliament’s website here.

“The maximalist” approach

After a public consultation conducted in 2019, the Scottish Government decided to adopt a ‘full and direct’ model of incorporation, as defined and recommended by the UN Committee on the Rights of the Child in General Comment No. 5.

However, Scotland is not an independent sovereign country so in drafting the Bill the Scottish Government was aware of the need for the Bill to take account of the Scottish context and, in particular, the constitutional constraints of devolution. The approach taken is, therefore, based to a strong degree upon the frameworks provided for in the Scotland Act and the Human Rights Act. The Scottish Government has opted for what it calls the “maximalist” approach, e.g. the Bill provides for the maximum protection possible for children’s rights within the devolution settlement. The Bill seeks to ensure that incorporation, and therefore enforceability of the rights and obligations incorporated by the Bill, is delivered up to the absolute limits of what is possible within the boundaries of the devolution settlement. The Bill will also make provision to allow incorporation of those provisions of the UNCRC currently beyond the powers of the Scottish Parliament into domestic law should the powers of the Parliament change in the future.

The “maximalist” approach means that the Bill fully and directly incorporates the rights and obligations in the UNCRC and the first and second optional protocols as far as is possible within the powers of the Scottish Parliament. The rights and obligations which are being incorporated are set out in the schedule of the Bill. It is not possible to incorporate those elements of the UNCRC and the first and second optional protocols which relate to reserved matters as this would be outside the power of the Scottish Parliament (e.g. nationality, recruitment into armed forces). For this reason there are some words or parts of articles of the UNCRC which the Bill does not incorporate. A version of the UNCRC and optional protocols showing all words that have been “carved out” is available here.

By fully and directly incorporating the UNCRC into Scots law, to the maximum extent within the Scottish Parliament’s powers, the Scottish Government intends to ensure that the rights contained in the UNCRC are afforded the highest protection and respect possible within the constitutional settlement.

Incorporation will have a wide impact on the lives of children and their families

Research conducted by Queen’s University Belfast (QUB) found that UNCRC incorporation in and of itself is significant. The very process of incorporation raises awareness of children’s rights and the UNCRC in government and civil society. In countries where incorporation has taken place, children are more likely to be perceived as rights holders and there is an improved culture of respect for children’s rights. Whilst incorporation does provide opportunities for strategic litigation, the strong message it conveys about the status of children and children’s rights and the knock-on effects for implementation of children’s rights principles into domestic law and policy is significant.

It is thus very much hoped that the UNCRC incorporation in Scotland, in addition to providing a clear channel of redress for breaches of children’s rights, including through the courts in the most serious of cases, will:

  • Help to embed children’s rights across all areas of life in Scotland – from schools and hospitals through to policing, planning and the environment.
  • Encourage a culture change in which children and young people’s voices are listened to, respected and influence the world around them.

Indeed, the Scottish Government has stated that “The Bill will revolutionise the way we listen to children and take their rights into account. By directly incorporating the UNCRC into Scots law, and to the maximum extent possible under the current powers of the Parliament, children’s rights will mean children and young people are involved in the decisions that affect their lives and that children’s rights are always respected, protected and fulfilled by public authorities.”  

Further reading – The UN Convention on the Rights of the Child: a study of legal implementation in 12 countries

Laura Lundy, Ursula Kilkelly, Bronagh Byrne and Jason Kang

This report looks at the implementation of the UNCRC in countries beyond the UK, compiling evidence on the most effective, practical and impactful ways of embedding children’s rights into domestic law and policy development processes. The 12 countries were chosen to demonstrate the variety of ways in which different countries have chosen to legislate for children’s rights and to implement the different articles of the Convention. Available here.

 


Featured image: Children celebrating World Children Day at the Scottish Parliament. Copyright: UNICEF UK

 

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