Incorporating the UN Convention on the Rights of the Child into Scots Law: consultation

Introduction

United Nations Convention on the Rights of the Child (UNCRC)

The UNCRC^[1] is one of the core United Nations (UN) human rights treaties.  It sets out the civil, political, economic, social and cultural rights of every child, regardless of their race, religion or abilities. 

The UK ratified the UNCRC in 1991 and since then has been obliged under international law to give effect to the rights set out in the UNCRC.  The UK has also signed the optional protocol on the involvement of children in armed conflict and the optional protocol on the sale of children, child prostitution and child pornography.  A further optional protocol which allows complaints to be made to the UN Committee on the Rights of the Child has not yet been signed by the UK.  While the UK is bound by the UNCRC in international law, because the UNCRC has not been incorporated into domestic law, those rights are not part of the law which can be enforced directly in Scottish courts^[2].  

Implementation of Children’s Rights in Scotland

The Scottish Government respects and protects the UNCRC rights to help deliver our aim that children grow up loved, safe and respected, and so that they reach their full potential.  It is the policy of the Scottish Government to reflect the UNCRC in legislation and policy.  

The approach in Scotland in this area to date has, generally, been to implement rights in international treaties by way of detailed implementing legislation rather than by incorporation into our domestic law of the terms of the treaty itself. Implementation in this way gives effect to the international rights in the Scottish context, ensuring that rights which are set out in an international treaty, and which are expressed in general terms are reflected in detailed provisions, which provide certainty for those who require to rely on the law in Scotland.

Section 1 of the Children and Young People (Scotland) Act 2014 (CYP Act 2014), which commenced in June 2015, places specific duties on Scottish Ministers aimed at furthering the effect of the UNCRC in Scotland.  These include consideration and delivery of appropriate action, listening to the views of children and promoting public awareness and understanding of children’s rights, including amongst children.  These duties also require Ministers to report to the Parliament every 3 years on relevant progress and their plans for the subsequent 3 year period.  The Scottish Government report, “Progressing the human rights of children in Scotland: A Report 2015-2018”^[3] sets out the progress made in relation to children's rights since June 2015.  This report also provides an update on progress against the UN Committee on the Rights of the Child’s “Concluding Observations”^[4] as they relate to Scotland.  

Since 1 April 2017, section 2 of the CYP Act 2014 has also placed a duty on a wide range of public authorities to report every 3 years on the steps they have taken to secure better or further effect of the UNCRC requirements within their areas of responsibility.  The first reports are due as soon as practicable after 1 April 2020.

There are a number of additional pieces of Scottish legislation which embody the UNCRC in Scots law.  These include:

• Children (Scotland) Act 1995 provides a major part of the legal framework for child welfare and protection in Scotland, it embeds Articles 1, 3, 5, 9, 12, 18, and 20.  Section 11 is an example of legislation which goes further than the UNCRC.  This provides that when considering whether or not to make an order on matters such as child contact and residence and parental responsibilities and rights, the court “shall regard the welfare of the child concerned as its paramount consideration”.  This compares to Article 3 of the UNCRC (best interests of the child) which provides that “the best interests of the child shall be a primary consideration” when considering all actions concerning children.
• Standards in Scotland’s Schools etc. Act 2000, sets out the provision of school education specifically relating to children's rights and the duty of the education authority and embeds Article 29. 
• Commissioner for Children and Young People (Scotland) Act 2003 embeds Articles 3, 12 and 42. It creates the post of Commissioner for Children and Young People in Scotland with the general function of promoting and safeguarding the rights of children and young people.
• Criminal Justice (Scotland) Act 2003.  Section 51 of this Act embeds Articles 3, 19 and 37 by protecting children from physical punishment and making it illegal to punish children by shaking, hitting on the head or using an implement.
• Mental Health (Care and Treatment) (Scotland) Act 2003.  Section 2 of the Act makes specific provisions as regards securing  the welfare of any child in respect of care or treatment given under the Act.  This legislation is based on a set of rights and principles which promotes patient’s rights which includes that any function should be carried out for the maximum benefit of the patient, with the minimum necessary restriction on the freedom of the patient and having regard to the views of the patient. 
• Education (Additional Support for Learning) (Scotland) Act 2004 embeds Articles 6, 23 and 29 in the education system.  It provides the legal framework which underpins the system for identifying and addressing the additional support needs of children and young people who face a barrier to learning.
• Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 provides for the protection given to children and young people from those who would wish to cause them sexual harm, or exploit them for sexual purposes and embeds Article 34.  The Act also aims to improve the protection given to children from those convicted of sexual offences who still pose a risk of sexual harm.
• Adoption of Children (Scotland) Act 2007 modernised the system of adoption in Scotland to provide long-term security for children who could not live with their families and embeds Articles 3, 7, 8, 9,12, and 21 into the adoption system.
• Protection of Vulnerable Groups (Scotland) Act 2007 embeds Articles 3 and 34 by creating the legislative framework for a strengthened, robust and streamlined vetting and barring scheme for those working with children and protected adults in Scotland. 
• Children's Hearings (Scotland) Act 2011 reformed the children’s hearings system and the Act embeds Articles 3, 4, 6, 8, 9, 12, 25 and 40 into the children’s hearing system. 

The Scottish Government has also taken forward a wide range of initiatives, such as Getting it right for every child (GIRFEC)^[5] our national programme to support and work with all children and young people in Scotland, which impact positively on the realisation of children’s rights. 

Human Rights in Scotland

The requirements within Part 1 of the CYP Act 2014 sit within the wider context of Scottish Ministers’ obligations to respect and protect human rights.  The Scotland Act 1998 requires that all Scottish Parliament legislation and all Scottish Government decisions and actions must be compatible with the rights set out in the Human Rights Act 1998 (HRA) and derived from the European Convention on Human Rights (ECHR).  The HRA also makes it unlawful for public authorities in Scotland to act incompatibly with the ECHR.  It is open to the Parliament to enact laws to observe and implement other international obligations, including international human rights obligations, so far as these are otherwise within the legislative competence of the Parliament.  The Scottish Ministerial Code recognises the responsibility of Scottish Ministers “to comply with the law, including international law and treaty obligations.”

Following on from announcements in the Programme for Government 2017-18, the First Minister established an Advisory Group on Human Rights Leadership to work independently of the government to develop recommendations on how Scotland can continue to lead by example on human rights, including economic, social, cultural and environmental rights.  The Group presented its report and recommendations^[6] to the First Minister on Human Rights Day, 10 December 2018.

International Experience

International experience suggests that a mixture of law, policy and practice is the best way to progress implementation of the UNCRC.  Non-legislative measures that different countries have used include national strategies and action plans for children, children’s rights training and the establishment of children’s commissioners or ombudspersons.  The Scottish Government’s priorities for embedding a children’s rights approach in Scotland over the next three years are set out in, “Progressing the Human Rights of Children in Scotland: 2018-2021 Action Plan”^[7], published in December 2018. 

Learning gained from experiences in other countries also indicates that there is no one model of incorporation and that incorporation is most effective when it is implemented in a way that best complements each individual country’s legal system, policies and practices.  In the Scottish context, constitutional constraints need to be considered, as some of the UNCRC rights fall within areas of law reserved to the UK Parliament by the Scotland Act 1998^[8].  There are also areas where rights within the UNCRC will be affected both by laws reserved to the UK Parliament and those devolved to the Parliament.^[9]  Similarly, there are significant overlaps between the rights enshrined in the HRA and the ECHR on one hand and the UNCRC on the other.  As a result, the approach to incorporation of the UNCRC must fit within both the devolution settlement, as set out in the Scotland Act 1998, and the human rights framework established by the HRA.  

The evidence suggests that in a number of countries incorporation has had a positive impact in providing a platform for the development of other legal and non-legislative measures, underpinned by systematic children’s rights training and a robust infrastructure designed to monitor, support and enforce implementation.

Consultation and engagement with children and young people and the full range of duty bearers and stakeholders is key to successful change in relation to rights awareness raising and incorporation.  Such processes take time, but the evidence is clear that an inclusive and consultative approach is essential.

Consultation 

In line with the Programme for Government 2018-19 commitment, this consultation looks at how a new Act could incorporate the UNCRC into the law of Scotland.  It is important that we develop a model of incorporation that will deliver the best outcomes for children, young people and families in Scotland.  Consultation is an essential part of that process.  It gives us the opportunity to hear your views on this proposed area of work.  To help us do this we have set out below a series of 

questions under three themes which will enable you to give your views.  The three themes are:

• legal mechanisms for incorporating the UNCRC into domestic law
• embedding children’s rights in public services
• enabling compatibility and remedies