Incorporating the United Nations Convention on the Rights of the Child into Domestic Law in Scotland Working Group: summary report

Theme 1 – Legal Mechanisms for Incorporating the UNCRC into Domestic Law

7. The Group considered a range of issues regarding potential legal mechanisms for the incorporation of the UNCRC within the constitutional context of the devolution settlement in Scotland. It was acknowledged that aspects of the UNCRC have already been incorporated into domestic law by a number of statutes. A minute of the Group’s discussion of this issue can be found in Annex H. It was recognised by a majority of the Group that, within the timescales available, it was not possible to grapple fully with all of the technical issues raised by different options in terms of the legal mechanisms for incorporation.

Majority View:

• A majority of members of the Group were of the view that there should be a standalone Scottish Bill which should incorporate as much of the UNCRC as is possible within the legislative competence of the Scottish Parliament.

8. It was noted by some members that it would not be open to the Scottish Parliament to incorporate the UNCRC in the same way as the UK Parliament incorporated the European Convention on Human Rights (ECHR) through the Human Rights Act 1998 – as a Scottish Bill would have to be within the legislative competence of the Scottish Parliament.

9. A paper, which addressed some of the legal issues around incorporation of the UNCRC, was presented by two members of the Group. The paper sought to propose a way forward in terms of a model of incorporation which embodied international best practice, whilst being tailored to the Scottish constitutional framework. The paper can be found in Annex C.

10. The Group considered the methods of incorporation which were set out within the Scottish Government’s consultation document. These are discussed below. A minute of the Group’s discussions of this issue can be found in Annex H.

Direct Incorporation

11. Under this model, the UNCRC would be enshrined into domestic law at either a legislative or constitutional level. As part of their deliberations, some members of the Group noted that the draft Bill developed by the Advisory Group convened by the Commissioner for Children and Young People Scotland and Together (Scottish Alliance for Children’s Rights) would provide for the full and direct incorporation of the UNCRC, with the caveat that the provisions would relate only to devolved functions and powers.^[3] It was suggested by some members that the use of such a caveat within the proposed Scottish Bill could allow for full and direct incorporation within the legislative competence of the Scottish Parliament.

12. In further discussing the possible benefits of full and direct incorporation of the UNCRC into Scots law, a member noted that Article 41 provides that nothing in the UNCRC shall affect any provisions in international or national law which are more conducive to the realisation of the rights of the child. Some members also suggested that full and direct incorporation would:

• be simpler and easier for a public authority to apply universally across all areas of its activity, with the exception of reserved matters;
• have a significant impact on the delivery of the full spectrum of public services and, in the longer term, could result in better joined-up working in the delivery of a framework of rights-based services; and
• help to maintain the universality of the UNCRC. They argued that piecemeal transposition (see paragraph 14) was not equivalent to full incorporation and could establish precedent for the divisibility of UNCRC rights.

These points are discussed in more detail in Annex H.

Majority View:

• The majority of members considered that the proposed Scottish Bill should incorporate the UNCRC fully and directly into domestic legislation, with the caveat that provisions would relate only to the exercise of devolved functions.

13. A minority of the Group expressed the view that Scots law is already largely compliant with the UNCRC and, in a number of respects, the protection which Scots law affords to children goes beyond what is required. These members were of the view that the practical benefits, rather than the symbolic benefits, of full and direct incorporation have to be weighed against the potential disadvantages. In that context, they expressed concern that a model involving the full and direct incorporation of the UNCRC could, in addition, present difficulties in relation to the legislative competence of the Scottish Parliament. They suggested that there are potentially significant disadvantages to such an approach which include, but are not necessarily limited to:

• the difficulty of achieving full and direct incorporation in a way which is within the legislative competence of the Scottish Parliament;
• adding to the complexity of child law in Scotland by placing the UNCRC alongside, or on top of, a substantial body of existing domestic law;
• raising expectations that full and direct incorporation would, of itself, improve the position of children in Scotland;
• creating additional demands on resources for what may turn out to be, at best, marginal benefit.

These views were not supported by the majority of members of the Group for the reasons set out in paragraph 12 above.

Other Legal Methods for Incorporating the UNCRC into Scots Law

Transposition of UNCRC Rights

14. A minority of members favoured a transposition model, in terms of which a suite of Scottish children’s rights could be developed and the Scottish Bill could apply a framework of duties and requirements to those rights. These members suggested that such a model could provide greater legal clarity on how the individual Articles of the UNCRC might be interpreted and applied to Scots law than that provided by direct incorporation. This view was disputed by the majority of members of the Group, in line with the arguments in favour of full and direct incorporation set out in paragraphs 11 and 12 above.

15. A potential solution to the devolved/reserved issues raised by incorporation was proposed in a discussion paper presented by a Group member. The paper, which can be found in Annex D, suggested the possibility of legislating to require listed public bodies to act in a way that is compatible with the UNCRC with respect to all of their functions. If such an approach proved feasible, it was suggested that it would take account of the legislative competence of the Scottish Parliament whilst minimising disruption to existing legislation and established case law. It was also suggested that, under this model, it would be easier for duty holders to understand and implement their duties and make it easier to explain to rights holder what their rights were. An optional additional meeting was held to discuss the paper. The minutes of this meeting are attached at Annex E.

16. Some members considered that the discussion paper did not provide a solution to address the issue of legislative competence of the Scottish Bill. For example, there was discussion about the impact of Part III of Schedule 5 of the Scotland Act 1998, which includes provisions relating to public bodies with both reserved and devolved functions.^[4]

Duty to Comply/ Duty to have Due Regard

17. The Group also considered how a possible duty to comply with the UNCRC and to have ‘due regard’ might impact on the work of public authorities in Scotland.
A minute of the Group’s discussion of this issue can be found in Annex H.

For Consideration:

18. Some members of the Group proposed that the Scottish Government should consider:

• the inclusion of a proactive duty (such as a duty to give due regard) within the incorporation framework of the Scottish Bill alongside a duty to comply; and
• whether the Scottish Bill should list those bodies to which the provisions will apply or rather take an approach similar to that of the Human Rights Act, applying the provisions to all those that carry out public functions, including the third sector and businesses subcontracted to fulfil public functions.

Articles of the UNCRC – Executing / Self-Executing

19. The Group considered whether some of the UNCRC rights may require further elaboration and guidance, to aid understanding and provide clarity. As part of these discussions, the Group considered in general terms whether or not the Articles of the UNCRC are self-executing, i.e. can be enforced directly by the courts without the need for legislative implementation prior to judicial enforcement. Some members suggested that this question could be viewed as possibly misleading, as they considered that the issue was mainly about whether a right could be directly applied in the courts, rather than being a right that requires legislative implementation before it may be applied by the courts. A minute of the Group’s discussion of this issue can be found in Annex H.

Supporting Public Authorities to Fulfil Their Duties

20. The Group also discussed how best to support public authorities to fulfil their duties following incorporation. In particular, it was noted by some members that, at an operational level, public authorities would need to know what the rights were and how to apply them. A minute of the Group’s discussion on this issue can be found in Annex H.

Majority View:

• The majority of members of the Group considered that accessible guidance and training should be provided for duty bearers to support preparation and planning for UNCRC incorporation.

For Consideration:

21. Some members of the Group proposed that consideration should be given to:

• how provisions in the Scottish Bill might be supported across public sector delivery, in terms of staffing and resources.
• whether specific bodies should develop their own guidance or codes
  of practice through their professional associations in addition to the development of statutory guidance.

Rights Awareness and Training

22. The Group also considered the need to promote awareness and understanding of children’s rights amongst children and young people. Members noted that a number of resources currently exist, or are being developed, either in Scotland or internationally, to raise awareness of rights, including, but not exclusively:

• The Scottish Government’s three-year programme to raise awareness of children’s rights across all sectors of society being developed through the “Progressing the Human Rights of Children in Scotland: An Action Plan 2018 – 2021”.^[5]
• The Scottish Government’s “Common Core of Skills, Knowledge & Understanding and Values for the ‘Children’s Workforce’ in Scotland 2012”.^[6]
• The Council of Europe’s Human Rights Education for Legal Professionals (HELP) programme to provide training for legal professionals as well as training for the judiciary and prosecutors.^[7]
• The UN World Programme for Human Rights Education for public bodies, social workers, teachers, police, children and young people, media, journalists etc.^[8]

Point of Consensus:

• Members of the Group agreed that international experience shows that incorporation of the UNCRC in isolation is insufficient to create a culture change around children’s rights. Any new legislation needs to be accompanied by an awareness-raising programme so that children are aware of the UNCRC and other rights protections; how to act to promote rights; and how they might challenge perceived breaches of their rights.

Litigation

23. The Group discussed the issue of post-incorporation litigation and access to justice, including the role that litigation could play in ensuring children’s UNCRC rights are upheld. Some members suggested that litigation should only be used as a last resort when all other possible remedies have been exhausted. A minute of the Group’s discussion of these issues can be found in Annex H. Mediation and child friendly complaints mechanisms, as alternatives to litigation, are also discussed at paragraph 30 below.

24. Some Members considered that the risk of litigation could be reduced by the development of clear guidance to support the understanding of the new provisions amongst both duty bearers and rights holders. It was also suggested by some that the management of public expectations around the possible meaning of individual Articles in practice, would also be important in this context.

For Consideration:

25. Some members of the Group proposed that consideration should be given to whether the need for children and their representatives to resort to litigation could be reduced by the development of clear guidance to support understanding of the new provisions amongst both duty bearers and rights holders. An explanation of the specific protections provided by individual UNCRC Articles in practice could also help to manage public expectations.

Age of Majority

26. The Group noted that Article 1 of the UNCRC defines a child as being anyone aged under 18 years, unless the legal ‘age of majority’ is attained earlier. Some members identified that Scots law sets out a number of different ‘ages of majority’ within different contexts. A minute of the Group’s discussion of this issue can be found in Annex H.

For Consideration:

27. Some members of the Group proposed that consideration should be given to how the different ‘ages of majority’ currently within Scots law might interact with UNCRC incorporation. This was identified as a particular issue for certain front line serves, such as policing.