UNCRC (Incorporation) (Scotland) Act 2024 - part 2: statutory guidance

2. Background and introduction to the UNCRC Act

The Scottish Government is committed to Scotland being the best place in the world to grow up. A central part of our vision is the recognition of, respect for and promotion of children’s rights. These include rights to be treated fairly, to be heard and to be as healthy as possible.

While all human rights treaties include children, the UN Convention on the Rights of the Child (UNCRC) recognises that specific consideration must be given to ensuring children’s rights are upheld. The UNCRC was created to give additional rights and protections to everyone under the age of 18.

Our vision is for Scotland to be a place where children’s rights are embedded in all aspects of society and where policy, law, and decision-making take account of children’s rights. We want Scotland to be a place where all children can share their views and are empowered to be human rights defenders. This section provides some background and context to the UNCRC Act, which will help us to realise this vision.

2.1 Children’s rights are human rights

The Universal Declaration of Human Rights is the foundation for international human rights law. It was adopted by the UN General Assembly in 1948 to provide common human rights standards for all peoples and nations in a post-war world. However, it is not binding, meaning that it does not create legal obligations for States. From the Declaration nine core international human rights instruments or treaties were developed, including the UNCRC.

The UNCRC expands on some of the rights found in other international instruments with a specific focus on children, including the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR).

The UNCRC was adopted by the General Assembly of the United Nations in 1989. It is the most widely ratified human rights treaty in the world. The UNCRC was a landmark treaty, recognising the importance of childhood and the unique needs of children across the globe. It sets out the civil, political, economic, social, and cultural rights that all children, everywhere, are entitled to. It remains to this day a core international human rights treaty.

The UNCRC builds on the Universal Declaration of Human Rights which states childhood is entitled to special care and assistance. It also explains how adults and governments must work together to make sure all children can enjoy all their rights. The UNCRC is a holistic children’s rights framework that informs Scottish Government strategies and programmes to fulfil the rights of every child, regardless of their or their parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status, as defined under Article 2 of the UNCRC.

Human rights are the basic rights and freedoms which we all have in order to live with dignity, equality and fairness, and to develop and reach our potential. Human rights are a list of things that all people – including children and young people – need in order to live a safe, healthy and happy life. Human rights, including those within the UNCRC are:

• universal (they apply to everyone, regardless of who they are)
• inalienable (they cannot be taken from you or given away)
• indivisible (they are all equally important)
• interdependent (breach of one impacts others)

The UNCRC consists of 54 articles. Articles 1 to 42 contain the substantive rights and obligations which States Parties must uphold and give effect to, and they cover the child’s civil, political, economic, social and cultural rights. There are four articles in the UNCRC which are known as the ‘General Principles’. These assist in interpreting all the other articles and can play a fundamental role in realising all the rights in the UNCRC for all children. These are also useful when considering how to give practical effect to taking a children’s human rights approach. They are:

• non-discrimination (Article 2)
• best interests of the child (Article 3)
• right to life, survival, and development (Article 6)
• right to express a view (Article 12)

The mutually reinforcing nature of human rights means that children’s civil, political, economic, social and cultural rights as expressed within the articles of the UNCRC all have equal status. Whilst the General Principles are a useful lens through which to consider the rights of children, they should not be considered paramount or in any way imply a hierarchy of rights. The remaining UNCRC articles include:

• freedom from violence, abuse and neglect (Article 19)
• the rights of disabled children (Article 23)
• the right to health and health services (Article 24)
• the right to an adequate standard of living (Article 27)
• right to education (Article 28)
• the right to play and to rest (Article 31)

Articles 43 to 54 concern procedural arrangements for the signature, ratification, and amendment of the UNCRC; the establishment of the UN Committee on the Rights of the Child (CRC); and the process for States Parties to report to the CRC on progress made in taking forward children’s rights. These articles have not been incorporated within the Act.

Childhood up to the age of 18 represents a time in our lives where we all require support from others to have a good quality of life, and where our wellbeing and needs are provided for. The actions, or inactions, of government impact children greatly given that most areas of policy affect children to some degree. The UNCRC also protects the rights of parents and carers to provide appropriate guidance to children and to support their rights.

2.2 International human rights - UK context

The Human Rights Act 1998 (HRA) incorporated the European Convention on Human Rights (ECHR) into UK law. It sets out the human rights that everyone in the UK is entitled to. Scottish Ministers cannot act in a way that is incompatible with those rights. The Scottish Parliament cannot pass legislation that is incompatible with the rights contained in the European Convention on Human Rights because that would fall outwith its law-making powers.

The signature and ratification of international treaties are reserved to the UK Government. The UNCRC was ratified by the UK Government in 1991. This means that the UK as a State Party, including Scotland, has a legal obligation to uphold the treaty. Scottish Government contributes to the UK-wide reports to the CRC which are collated by the UK Government as the State Party.

The UK Government has also ratified the first optional protocol of the UNCRC on the involvement of children in armed conflict and the second optional protocol of the UNCRC on the sale of children, child prostitution and child pornography. Optional protocols are additional treaties to a main treaty, such as the UNCRC, which States Parties can ratify. They expand on an aspect of the original treaty or address an additional issue.

A third optional protocol which allows complaints to be made to the CRC has not yet been ratified by the UK Government, but the UNCRC Act grants the Scottish Government the power to amend the Act if this or any other additional protocols are ratified by the UK and have entered into force in the UK, or should it be possible to ratify this within the powers of Scottish Parliament at a later stage.

2.3 Incorporation history in Scotland

Scotland has a strong track record in implementing the rights of children by taking steps to respect, protect, and fulfil children’s rights within law, policy and practice. The Act builds upon a proud tradition of respecting children’s rights in Scotland that predates even the adoption of the UNCRC by the UN General Assembly in 1989, such as the pioneering and unique children’s hearings system, which became operational in 1971.

The Children (Scotland) Act 1995 and Children (Scotland) Act 2020 provide a major part of the legal framework for child welfare and protection in Scotland and are based on the UNCRC. In addition, Scottish Government respects, protects and fulfils children’s rights to help deliver the National Outcomes which underlie the National Performance Framework, in particular, that children ‘grow up loved, safe and respected, so that they reach their full potential’ and ‘we respect, protect and fulfil human rights and live free from discrimination’. The national approach in Scotland to supporting and promoting the wellbeing of children and young people by offering the right help at the right time from the right people is called ‘Getting it right for every child’ (GIRFEC) and upholds rights-based practice.

Children, young people and adult human rights defenders played a key role in campaigning for the incorporation of the UNCRC in Scotland. As a result, on 1 September 2020, the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill was introduced to the Scottish Parliament and was passed unanimously on 16 March 2021. In October 2021, following referral by the UK Law Officers, the UK Supreme Court found certain of the provisions in the Bill to be outwith the legislative competence of the Scottish Parliament, as set out in the Scotland Act 1998. That judgment was addressed by returning a revised Bill to Parliament via the Parliamentary Reconsideration stage on 7 December 2023 when it was approved unanimously. It gained Royal Assent on the 16 January 2024 and the section 6 duty came into force on 16 July 2024.

The UNCRC Act makes Scotland the first country in the UK, and the first devolved nation in the world, to directly incorporate the UNCRC into domestic law. It is a landmark piece of legislation in making sure Scotland is the best place to grow up.

2.4 Meaning of the ‘UNCRC requirements’

The term ‘UNCRC requirements’ is defined by section 1(2) of the Act as ‘the rights and obligations from the Convention, the first optional protocol and the second optional protocol that are set out in the schedule.’ References throughout this guidance to the ‘UNCRC requirements’ mean the UNCRC requirements as defined by section 1(2) of the Act.

Some aspects of the UNCRC text have been removed or ‘carved out’ and do not appear in the Act. Scottish Government has provided a copy of the UNCRC treaty text which indicates which sections have been removed. The elements which have been removed relate to reserved matters under the Scotland Act 1998 that are outwith the legislative competence of the Scottish Parliament.

The removals include, for instance, the second part of Article 11 of the UNCRC which relates to the reserved matter of international relations, and the third part of Article 38 which relates to the reserved matter of defence. In some instances, only a phrase has been affected, for example in Article 7 the text ‘the right to acquire a nationality’ has been removed as this relates to the reserved matter of immigration. All text from within the UNCRC and the First and Second Optional Protocols which are within the legislative competence of the Scottish Parliament have been included in the Act.

Section 2(3) of the Act contains a table setting out how certain references in the schedule should be read. For example, in which provisions certain terms are to be understood as referring to the United Kingdom or to Scotland. In relation to article 2 of the Convention as set out in the UNCRC requirements, the table also contains a modification so that the reference in that article to States Parties is read as a reference to a more restricted class of public authority, for reasons of legislative competence.