UNCRC (Incorporation) (Scotland) Act 2024 - part 3: statutory guidance

Annex A

A.1 Background to and incorporation history of the Act

This annex explains what children's rights are, and shares the history of incorporation in Scotland and the broader context of human rights in Scotland.

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. From this arose nine core international human rights instruments or treaties, including the UN Convention on the Rights of the Child (UNCRC). The UNCRC duplicates some of the rights found in other international instruments. This is because the UNCRC affirms and articulates the significance of these human rights for children up to the age of 18.

The UNCRC was adopted by the General Assembly of the United Nations in 1989 and was ratified by the UK Government in 1991. 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 and it remains, to this day, a core international human rights treaty.

The UNCRC builds on the Charter of the United Nations (1945) which recognised that the inherent dignity and the equal and inalienable rights of all members of the human family are the foundation of freedom, justice, peace and social progress. It realises the Universal Declaration of Human Rights (1948), 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 the child's 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.

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 them all)

The UNCRC consists of 54 articles, and these are where the rights of the child are stated within the treaty. Articles 1 to 42 contain the substantive rights and obligations which States Parties must uphold and give effect to and cover the child's civil, political, economic, social and cultural rights. These include:

• the right of the child to be heard and have their opinion considered (Article 12)
• freedom from violence, abuse and neglect (Article 19)
• the right to a proper house, food and clothing (Article 27)
• access to primary and secondary 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 and the establishment of the Committee on the Rights of the Child (CRC) and the reporting process for States Parties. These articles have not been incorporated within the Act.

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 rights-based approach. They are:

• non-discrimination (Article 2)
• best interest of the child (Article 3)
• right to life, survival, and development (Article 6)
• right to express views and be heard (Article 12).

The mutually reinforcing nature of human rights means that children's civil, political, economic, social and cultural rights as expressed within the 54 articles of the UNCRC, all have equal status, so 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 UK Government has also ratified the first optional protocol on the involvement of children in armed conflict and the second optional protocol on the sale of children, child prostitution and child pornography.

A third optional protocol which allows complaints to be made to the CRC has not yet been ratified by the UK Government, but the Act grants the Scottish Government the power to incorporate this and any other additional protocols if at some point they 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.

Childhood, defined as the period of life 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, where our wellbeing and needs are provided for. The actions, or inactions, of government impact children more strongly than any other group in society and every area of government policy affects children to some degree. The additional rights afforded to children within the UNCRC recognise that childhood is a special time which must have additional protections.

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

Our vision is a Scotland where children's rights are embedded in all aspects of society. This is a Scotland where policy, law, and decision-making take account of children's rights and where all children and young people have a voice and are empowered to be human rights defenders.

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.

Examples of legislation and policy which have previously given effect to the rights and obligations within the UNCRC in Scotland include the Children and Young People (Scotland) Act 2014 (2014 Act) and 'Getting it right for every child' (GIRFEC) – the national approach in Scotland to improving outcomes and safeguarding, supporting and promoting the wellbeing^[4] Scotland has a legislative and policy definition for wellbeing which is expressed through the aspiration that every child and young person will be Safe, Healthy, Achieving, Nurtured, Active, Respected, Responsible, and Included (SHANARRI.) of children and young people by offering the right help at the right time from the right people.

The Children (Scotland) Act 1995 and the 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, the 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".

On 1 September 2020, the UNCRC (Incorporation) (Scotland) Bill was introduced to the Scottish Parliament and was passed unanimously by the Scottish Parliament 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 18 duty will come into force 6 months from Royal Assent, on 16 July 2024.

The UNCRC (Incorporation) (Scotland) Act 2024 will make Scotland the first country in the UK, and the first devolved nation in the world, to directly incorporate the UNCRC into domestic law and is a landmark piece of legislation in making sure Scotland is the best place to grow up.

Broader human rights context in Scotland

In Scotland, human rights are a devolved matter. The Scottish Parliament also has competence to observe and implement international human rights treaties. In Scotland, civil and political rights are protected by the Human Rights Act 1998 which incorporated the European Convention on Human Rights (ECHR) into UK law and makes it unlawful for the Scottish Parliament to enact legislation that is incompatible with the rights defined in the Human Rights Act. Scottish Ministers cannot act in a way that is incompatible with those rights.

The Scottish Government's vision is for a statutory human rights framework for Scotland that ensures the rights of every member of Scottish society are respected, protected and fulfilled, and that everyone can live with fundamental human dignity. Following on from the recommendations of the National Taskforce for Human Rights Leadership and a subsequent public consultation, the Scottish Government will bring forward a new Human Rights Bill. The Bill will give effect to a wide range of internationally recognised human rights belonging to everyone in Scotland, within the limits of devolved competence, and strengthen domestic legal protections by making these rights enforceable in Scots law. In particular, the Bill will seek to bring an enhanced focus to the implementation of economic and social rights and will include specific rights for women, disabled people and people experiencing racism.

The UNCRC Act, which will ensure that children's rights are fully embedded in the law of Scotland, is a first step in achieving that larger ambition. The intent behind the Act is to ensure that the rights contained in the UNCRC are afforded the highest protection and respect possible within the current constitutional settlement.

The Act has the intent of delivering a proactive culture of everyday accountability for children's rights across public services in Scotland. As part of this, public authorities must take proactive steps to ensure compliance with children's rights in their decision-making and service delivery.

A.2 Overview and key aspects of the UNCRC Act

This annex explains the definition of key aspects of the UNCRC Act and signposts to further information.

Meaning of the 'UNCRC requirements'

Under the Act, public authorities are required not to act incompatibly with the UNCRC requirements. The term 'UNCRC requirements' is defined by section 1 of the Act as the rights and obligations set out in the schedule of the Act.

The Act has incorporated the direct text of the UNCRC to the maximum extent possible within the powers of the Scottish Parliament. Some aspects of the text have been 'carved out' and do not appear in the Act. Those 'carved out' elements refer to reserved matters under the Scotland Act 1998 that are outwith the legislative competence of the Scottish Parliament.

This includes, for instance, Article 11(2) of the UNCRC which relates to the reserved matter of international relations, and Article 38(3) which relates to the reserved matter of defence. In some instances, only a phrase has been affected, for example in Article 7(1) 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 was within the legislative competence of the Scottish Parliament has been included.

The UNCRC requirements apply across the entire system of government and public administration in Scotland, and to any bodies across the public, third and independent sectors, where they too meet the definition of a 'public authority' as defined in sections 6(5), (6), (7) and (8) of the Act. This is covered more extensively in the Section 4 of the Part 2 Guidance.

In addition, section 3 of the Act provides Scottish Ministers "power to modify the schedule" in certain circumstances. For example, if the UK government ratified the Third Optional Protocol of the UNCRC, the section 3 power would enable Ministers to modify the schedule of the Act to also include the Third Optional Protocol to the maximum extent possible.

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.

Description of section 6 compatibility duty in Part 2 of the UNCRC Act

As the UK has ratified the UNCRC, compliance is in any event expected under international law obligations, unless the legislation prevents a public authority from acting compatibly.

Section 6 places a duty on public authorities not to act incompatibly with the UNCRC requirements in schedule 1 of the Act. This includes failures to act, that would result in an incompatibility with the UNCRC requirements. The UNCRC requirements are explained in section 3.3 of the Part 2 guidance.

This means action could be taken by a court against a public authority in respect of a breach of their duties if they act incompatibly when the duty applies.

The circumstances in which a public authority can be found to have acted unlawfully on this basis are where an action or failure to act is incompatible with the UNCRC requirements.

This duty applies when public authorities are carrying out 'relevant functions' which are defined in the Act as:

(2) In subsection (1), a "relevant function" means a function that—

• it is within the legislative competence of the Scottish Parliament to confer on the authority, and
• is conferred by—
  • (i) an Act of the Scottish Parliament,
  • (ii) a Scottish statutory instrument originally made wholly under a relevant enabling power,
  • (iii) a provision in a Scottish statutory instrument originally made partly under a relevant enabling power, provided that the provision itself was either—
    • (A) originally made under the relevant enabling power, or
    • (B) inserted into the instrument by an Act of the Scottish Parliament or subordinate legislation made under a relevant enabling power, or
  • (iv) a rule of law not created by an enactment

Legislative Competence- 2(a)

To be within the competence of the Scottish Parliament a function must not relate to reserved matters. The UNCRC requirements in schedule 1 to the Act, as detailed at section 1.3 of this guidance, are of assistance here. The articles or aspects of the articles of UNCRC which are reserved are not included in the UNCRC requirements. The legal duty therefore does not apply to any reserved functions, but public authorities can still choose to act compatibly unless the source of the reserved function prevents them from doing so.

Common law functions- 2(iv)

The "rule of law" refers to what is known as "common law". Common law refers to case law developed over time by decisions made by the courts – this can also be referred to as judicial precedent, or case law. Courts can interpret legislation and set out findings which explain how public authorities must comply with their statutory duties. An example of this is how the courts have interpreted the duty not to act incompatibly with the ECHR, as set out in the Human Rights Act. Individual public authorities should seek their own legal advice in relation to how case law may impact upon how they should carry out their functions. When a public authority is carrying out functions derived from common law powers, they will always be required to not act incompatibly with UNCRC requirements.

Legislation- 2(b)

The word "legislation" means the same as the word "enactment". The types of legislation to which the duty applies are specified as functions^[5] listed in sub-paragraphs (i) to (iii)

enacted by the Scottish Parliament, or enacted by virtue of the Scottish Parliament delegating its power to make legislation to Scottish Ministers. This means that the duty will apply to stand alone provisions in Acts of the Scottish Parliament (ASPs), or subordinate legislation which are made using powers from an ASP.

Legislation may amend other pieces of legislation; when it does, text inserted into one enactment by another enactment is generally considered to form part of the enactment into which it is inserted, rather than being considered to be part of the enactment which inserted the text. The definition of the compatibility duty proceeds on this basis, and means that the duty does not apply to text inserted by ASPs (or subordinate legislation made under powers in a ASPs) into other enactments (such as UK Acts or subordinate legislation made under powers in a UK Act).

To help determine whether the duty applies, a public authority would need to identify whether the statutory function in question was enacted by the Scottish Parliament or the UK Parliament.

UK Act amendments to ASPs

As a result of this approach to statutory interpretation, amendments to ASPs by UK legislation are covered by the duty. However, to avoid affecting the UK Parliament's ability to make law for Scotland, provision is made to remove such amendments from the scope of the section 6 duty, if the UK legislation which makes the amendment is worded in a way that the authority is required or entitled to act incompatibly.^[6] Section 6 (4) of the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024

Secondary legislation

Scottish Statutory Instruments( SSIs) made using powers solely from ASPs are also covered by the duty.

SSIs made partly under a power conferred by an Act of the Scottish Parliament and partly under a power conferred by an Act of UK Parliament are within the scope of the Act. However, only functions conferred by provisions which were enacted solely by virtue of the power conferred by the Act of the Scottish Parliament, plus provisions inserted directly into the instrument by an Act of the Scottish Parliament, are subject to the duty.

In summary, this means that:

• functions conferred by Acts of UK Parliament,
• statutory instruments made solely under powers conferred by Acts of Parliament, and
• provisions of Scottish statutory instruments made under a power conferred by an Act of Parliament are not subject to the duty.

As functions in reserved areas are already excluded, the definition of "relevant function" in relation to Scottish statutory instruments mainly serves, in practice, to exclude devolved functions created by or under the authority of the UK Parliament.

Summary of coverage in legislation

In summary, the duty will apply to devolved functions created by legislation of the Scottish Parliament and does not extend to devolved functions created by legislation of the UK Parliament. There is however no barrier to a public authority choosing to act compatibly under all or any of their devolved functions, unless the legislation itself makes it unlawful to do so.

Acting compatibly under section 6

To meet the section 6 duty means not to act incompatibly with the UNCRC requirements.