4th July 2019
The Scottish Government wants to hear your views on bringing the UN Convention on the Rights of the Child (UNCRC) into Scots law. Our overview will help get you up to speed!
1. Background
What is the UN Convention on the Rights of the Child (UNCRC)?
This is an international agreement setting out over 40 specific rights of all children and young people under 18. It has been ratified by most countries, with the UK ratifying in 1991. This means it has been given official approval, however these rights are not guaranteed as it has not been incorporated into domestic law.
What are the principles of the UNCRC?
The core principles are that every child has a right to life, survival and development; to not be discriminated against; to be able to express their views; and for their best interests be the main consideration in all matters affecting them.
The UNCRC also includes articles about:
- civil rights and freedoms
- violence against children
- family environment and alternative care (including the right to be raised by, or have a relationship with, their parents)
- health and welfare
- education, leisure and culture
- special protection measures, such as rights for refugee children, those affected by war and children in the juvenile justice system, and the right to not be exploited
What is the Scottish Government consulting on?
In April, First Minister Nicola Sturgeon made a commitment that the Scottish Government would incorporate the UNCRC into Scots law by the end of the current Parliament ie by 2021. As part of this process, the government has asked for views on how UNCRC could be incorporated into law, how children’s rights should be fixed into public services, and how children’s rights can be enforced.
Why now?
- There has been a long running campaign to incorporate the UNCRC by a range of children’s charities and organisations;
- the Scottish Government wants to make sure policy, law, and decision-making takes account of children’s rights, and that children are able to understand and defend these rights;
- the EU Charter of Fundamental Rights give some legal protections to children’s rights, and so these will be lost after Brexit;
- and it is the 30th anniversary of the UNCRC.
2. What does the consultation say?
The consultation is focused around three themes: what legal mechanisms could be used to bring the UNCRC into law; how children’s rights can be embedded into public services; how to make sure it is compatible with current law, making sure children can challenge if their rights have been infringed.
2.1 Legal mechanisms for incorporating the UNCRC into domestic law
While other countries have brought the UNCRC into their laws, there is no one set way to do so. The Scottish Government is looking to bring a Bill to Parliament, and this section looks at what legal duties could be included in this:
- To “act compatibly” with the UNCRC - similar to the Human Rights Act model which means the government must comply with the UNCRC.
- To “pay due regard” to the UNCRC - similar to the Welsh Measure for Children and Young People, which means the government has to show it has considered children’s rights in its decisions but does not always have to comply with them.
The consultation also looks at how the UNCRC could be incorporated into law:
- “Direct incorporation”: where the exact wording of the UNCRC would be brought into Scots Law.
- Create a Scottish “suite of rights” which would reword the UNCRC to fit the Scottish context.
- Include the UNCRC alongside other human rights treaties in a new Statutory Human Rights Framework for Scotland. However, this legislation would not be passed before 2021.
The Scottish Government favours the “suite of rights” approach, saying this would get around any issues caused by some aspects of the UNCRC reserved to Westminster. However, an independent Incorporation Advisory Group of legal experts, set up by Together and the Children and Young People’s Commissioner, have drafted their own example Children’s Rights Bill to show how the UNCRC could be incorporated into Scots law. This would include the original wording of the UNCRC, while making clear the UNCRC can only affect matters which come under the scope of the Scottish Parliament.
2.2 Embedding children’s rights in public services
This section looks at what measures the Scottish Government intends to use so it and other public bodies follow and promote the UNCRC:
- A Children’s Rights Scheme, similar to that used in Wales. This includes awareness raising, training, Children’s Rights Impact Assessment process, setting out accountability and compliance mechanisms, how Ministers may be held to account to carry out their legal duties, and to make sure the scheme is revised when needed.
- Other non-legislative activities: the Scottish Government says it will raise awareness of children’s rights throughout society, through resources, training, and school activities. It will also create a strategy to include children and young people in decision making, as part of the legacy of the Year of Young People. And it will review and update the Child Rights and Wellbeing Impact assessment process.
2.3 Enabling compatibility and redress
This section looks at how the UNCRC can be enforced, and how children can take action if public bodies act in a way which goes against their rights.
- The consultation explains how Scottish Parliament Bills could be “certified” - where whoever introduces a Bill to Parliament would have to certify that it complies with the UNCRC.
- That children, and those acting on their behalf, must have the right to challenge and take to court public bodies if they believe their rights have been infringed.
- The consultation asks whether public bodies should follow the UNCRC even if it goes against existing laws created by ministers. This would be similar to the way the Human Rights Act takes forward the European Convention on Human Rights.
- That provisions which would allow courts to interpret and apply legislation in ways that comply with the UNCRC should be included in the Bill, similar to the Human Rights Act.
Useful links
Together, the Scottish Alliance for Children’s Rights
Children and Young People’s Commissioner Scotland