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

Theme 2: Embedding children’s rights in public services

Incorporating the UNCRC into Scots law will strengthen existing work to protect and respect children.  Incorporation will ensure that children’s rights are woven into policy, law and decision making.  Children will be empowered to know and understand their rights and, if necessary, advance them in court.  Measures that would oblige public authorities to mainstream children’s rights in their practice are discussed in this section.

Children’s Rights Scheme

The UN Committee on the Rights of the Child recommends the development of a comprehensive national strategy or national plan of action for children, built on the framework of the UNCRC^[32].  One option is the development of a children’s rights scheme that sets out the practical arrangements by which the UNCRC is embedded in practice and demonstrates that robust and transparent processes are in place to support the implementation of legislative duties in relation to UNCRC rights.  

A recent example of such a scheme is the Welsh Children’s Rights Scheme which was published in line with requirements in The Rights of Children and Young Persons (Wales) Measure 2011.  Welsh Ministers are required to set out the arrangements they have or plan to have in place to ensure they comply with their duty to have due regard to the UNCRC.  The Welsh Government believes that its Children’s Rights Scheme will: 

• establish robust processes to ensure that the Welsh Ministers act in compliance with their duty under the legislation
• provide transparency about the processes that are being followed
• enable Welsh Government staff to support the Welsh Ministers to comply with the duty
• provide information on how the Welsh Ministers may be held to account in complying with the due regard duty

The Scheme sets out a number of the ways in which the Welsh Government plan to achieve this, including: 

• ensuring appropriate awareness raising and training is in place and actively promoted and taken up
• putting a Children’s Rights Impact Assessment (CRIA) process in place  
• setting out accountability and compliance mechanisms 
• providing information and guidance on how Welsh Ministers may be held to account for compliance with their legislative duty
• ensuring that this Scheme is revised when necessary  
• ensuring clear understanding of roles and responsibilities in relation to all of these elements

The Children’s Rights Scheme in Wales may be updated in light of a suggestion or recommendation made by the UN Committee on the Rights of the Child based on a UK report.

In Scotland, there are already a number of measures in place, through legislation and non-legislative means that seek to embed children’s rights in policy and practice. Under section 1 of the CYP Act 2014 the Scottish Government is required to promote public awareness and understanding of the rights of children.  Scottish Ministers are required to report on the steps they have taken over a 3 year period to secure better or further effect of the UNCRC requirements and their plans for the next 3 year period.  Public authorities too must report on the steps they have taken to secure better or further effect of the UNCRC requirements within their areas of responsibility.

In support of the duties under Part 1 of the CYP Act 2014, from June 2015, the Scottish Government introduced a Child Rights and Wellbeing Impact Assessment (CRWIA).  The CRWIA aims to ensure that all areas of the Scottish Government consider the possible direct and indirect impacts of proposed policies and legislation on the rights and wellbeing of children and young people.  The CRWIA, which was developed by a children’s rights expert, in consultation with relevant stakeholders, is promoted across the Scottish Government as a key tool in the development of policy.  The views of children and young people are integral to the CRWIA process.  There is a clear Ministerial expectation that CRWIAs will be carried out for all new policies and legislation.  The CRWIA guidance and training tool were updated in March 2019 following a review.  Guidance on the CRWIA approach has been published for use by public authorities (and other organisations) on a voluntary basis.  

The Commissioner for Children and Young People (Scotland) Act 2003 provides for the Commissioner to undertake investigations in respect of how service providers have regard to the rights, interests and views of groups of children and young people in making decisions or taking actions that affect them.  Provisions in Part 2 of the CYP Act 2014 build on this by empowering the Commissioner to conduct such investigations on behalf of individual children.  

A Children’s Rights Scheme in Scotland could bring together and build on these measures.  

Question 

13. Do you think that a requirement for the Scottish Government to produce a Children’s Rights Scheme, similar to the Welsh example, should be included in this legislation? Please explain your views. 

Preparation for public authorities  

In its recommendations, the First Minister’s Advisory Group on Human Rights Leadership recognised that public authorities would need a period of time to prepare for the Bill proposed in their report.  This will also be true for public authorities which become subject to duties under a Bill to incorporate the UNCRC.  This can be addressed by leaving a sufficiently long period before the Bill is commenced in full.  This could be done in a number of ways.  The First Minister’s Advisory Group on Human Rights Leadership report suggested a “sunrise clause” for the Bill proposed in their report which would create a two-stage process of the Bill coming into force.  There would be a first transitional period in which public authorities were given time to ensure that their policies and practices were aligned with the rights in the Act.  At the end of that transitional period, public authorities would automatically be under a duty to comply.  Under this approach, the date for the duty to comply would be stated in the Bill and if the Bill were passed Ministers would have no discretion as to when it came into force.  

The First Minister’s Advisory Group on Human Rights Leadership propose that this would give rights holders certainty on when their rights will be incorporated into domestic law.  An alternative, and the more common way of addressing the need to give those affected time to adjust to the change in the law, would be to simply delay commencement of the Bill in order to allow public authorities a period of time to prepare for commencement of a compliance duty, and to allow Ministers to bring the Bill into force at the appropriate time.  This is the approach which was used for the HRA which was enacted in November 1998 but not fully commenced until October 2000. 

It would be possible to include a provision to enable public authorities to prepare for a new Bill incorporating the UNCRC, whichever approach was taken to incorporation. 

Question 

14. Do you think there should be a “sunrise clause” within legislation?  Please explain your views. 

15. If your answer to the question above is yes, how long do you think public bodies should be given to make preparations before the new legislation comes into full effect?  Please explain your views.

Additional non-legislative activities to progress implementation of the UNCRC

In their General Comment 5 on, ‘general measures of implementation of the UNCRC’, the UN Committee on the Rights of the Child describes a range of administrative and other non-legislative measures that states should undertake to implement the UNCRC^[33]. 

There are many non-legislative actions that can help make children’s rights real.  We want to be an example to other countries and so will consider where it may be possible for Scots law to go further than the UNCRC requires, where that is demonstrably beneficial for children and young people. 

As well as incorporating the UNCRC into domestic law, Scottish Government “Progressing the Human Rights of Children in Scotland: 2018-2021 Action Plan” ^[34] published in December 2018 outlines three further strategic actions:

• develop through co-production, an ambitious programme to raise awareness and understanding of children’s rights across all sectors 
• develop a strategic approach to all children and young people’s participation
• evaluate the Child Rights and Wellbeing Impact Assessment (CRWIA) 

Develop and deliver through co-production, an ambitious programme to raise awareness and understanding of children’s rights across all sectors of society in Scotland.  We will do this by:

• mapping existing rights-based awareness resources, programmes and training packages
• recruiting young leaders to organise and co-facilitate 5 un-Conference^[35] events and local discussion groups in different locations across Scotland
• where gaps or weaknesses have been identified we will, through co-production, develop resources and training programmes to strengthen rights awareness and understanding across all areas of society
• working alongside Education Scotland to strengthen awareness and understanding of children’s rights through a range of activities which supports the development of a right based culture and ethos in schools and early learning and childcare centres

Develop a strategic approach to all children and young people’s participation, as part of the Year of Young People (YoYP) legacy.  Our aim is to mainstream the participation of children and young people in decision-making across Scottish society.  We will do this by:

• working in partnership with our stakeholders, and importantly with children and young people, to develop our strategic approach
• making sure that we listen to ‘representative’ voices of children and young people, in particular ensuring that the voices of the seldom heard, vulnerable and younger children are routinely heard
• considering resourcing and how participation is made sustainable
• considering access, including digital technology, to support wider engagement
• publishing an evidence base of existing research, good practice and policy areas that have consulted with children and young people

Evaluate the Child Rights and Wellbeing Impact assessment (CRWIA) process and support and promote its use. We will do this by:

• updating the templates, guidance and training materials for the CRWIA process and make these publicly available on the Scottish Government Website
• encouraging the use of the CRWIA materials by Public Authorities and children & young people’s organisations
• developing an impact evaluation process for the CRWIA

Question

16. Do you think additional non-legislative activities, not included in the Scottish Government’s Action Plan and described above, are required to further implement children’s rights in Scotland?  Please explain your views.