United Nations Convention on the Rights of the Child: consultation analysis
Analysis of the United Nations Convention on the Rights of the Child (UNCRC) consultation responses and events which took place over summer 2019.
2. Theme 1
The focus of the questions under theme 1 of the consultation was the legal mechanisms for incorporating the UNCRC into domestic law.
2.1 Question 1
Are there particular elements of the framework based on the HRA as described here, that should be included in the model for incorporation of the UNCRC in domestic law? Please explain your views.
| Option | Total | Percentage |
|---|---|---|
| Yes | 102 | 63% |
| No | 7 | 4% |
| Don’t know | 15 | 9% |
| Not answered | 21 | 13% |
| Not specified | 17 | 10% |
| n=162 |
| Option | Total | Percentage |
|---|---|---|
| Yes | 102 | 82% |
| No | 7 | 6% |
| Don’t know | 15 | 12% |
| n=124 |
A total of 122 respondents provided written comments to explain their views. The key views arising in these comments are set out below, in order of frequency.
The most popular view expressed by respondents was that the element of the framework that prohibits public authorities from acting incompatibly with the ECHR should be replicated for the UNCRC. This view was expressed by half of those who provided comments (62 respondents). This would ensure that the incorporated UNCRC is binding, not guiding, for public authorities. This view was raised by just over half of third sector organisations (40 respondents), just under half of public bodies (11 respondents) and a quarter of individuals (5 respondents). It was also raised by 4 out of 6 academics and 1 out of 3 legal professions/organisations.
“Section 6 of the Human Rights Act 1998 prohibits public authorities from acting incompatibly with the Act. We believe it is vital that the chosen model for incorporation makes it unlawful for public authorities to act incompatibly with the UNCRC and the Optional Protocols which the UK has signed up to. This will achieve the goal of ensuring the UNCRC is binding and not just guiding.” (Charity / non-profit organisation)
Two-fifths of respondents who provided comments (49 respondents) suggested that the element of the framework that ensures substantive and legal remedies when a violation occurs should be included. These respondents commented that for the incorporation of the UNCRC to be meaningful, children’s rights must be enforceable in a court of law. In other words, rights must be justiciable and legal redress must be available for children’s rights to be fully protected. On occasion, respondents support this view by noting that the UN Committee on the Rights of the Child (the UN Committee) has made clear that for rights to have meaning, effective remedies must be available to redress violations. These points were raised by just under half of third sector organisations (33 respondents), just over a fifth of public bodies (5 respondents) and a fifth of individuals (4 respondents). It was also raised by 4 out of 6 academics and 1 out of 3 respondents from legal professions/organisations.
“One of the major critiques of the international rights-based framework is the lack of enforcement mechanisms (Hollingsworth, 2017; Kilkelly, 2008b; Goldson and Kilkelly, 2013), so we would argue that it is particularly important that, as in the HRA, rights can be invoked before the courts as a means of upholding children’s rights.” (Children’s rights organisation)
Over a quarter of those who provided comments in response to this question (34 respondents) expressed the view that the element of the framework that requires legislation to be compatible with the provisions set out in the UNCRC should also be included. These respondents explained that this requirement means there should be a statement of compatibility made when introducing a Bill to the Scottish Parliament. They also explained that courts should have power to declare legislation incompatible, necessitating amendments to the legislation (although there was minimal discussion of whether such a power comprises an ability to make a statement of incompatibility or a ‘strike down’ power). They suggest that this element would ensure children’s rights are at the forefront of legislative developments in Scotland, as long as there is sufficient scrutiny of declarations of compatibility. These issues were raised by just under a third of third sector organisations (22 respondents), under a fifth of public bodies (4 respondents) and under a fifth of individuals (3 respondents). It was also raised by 3 out of 6 academics and 1 out of 3 respondents from legal professions/organisations.
“Like the requirement in Section 19 of the Human Rights Act, [we believe] that for every bill introduced to the Scottish Parliament, Scottish Ministers must include a statement of compatibility with the UNCRC and Optional Protocols. This move would ensure children’s rights are at the forefront of policy development and legislative change in Scotland.” (Children’s rights organisation)
Over a quarter of those who provided comments in response to this question (34 respondents) agreed in general terms that the framework based on the Human Rights Act 1998 (HRA) is an appropriate existing model to follow. These respondents commented that the HRA framework is a model that has been proven to be effective and key framework elements are already familiar to public authorities. The HRA framework is seen to include suitable and successful mechanisms for embedding international conventions into domestic law, which have already been ‘tried and tested’ at UK level. Respondents commented that the HRA framework already delivers important protections for human rights which can also be secured for children’s rights through following a similar framework. This view was raised by just under a third of third sector organisations (21 respondents), just over a fifth of public bodies (5 respondents) and a fifth of individuals (4 respondents). It was also raised by 1 out of 6 academics and 2 out of 3 respondents from legal professions/organisations.
“The HRA has been part of our domestic law for some 20 years now. The framework has been tried and tested. Those working with the HRA, for example employers, solicitors and the Courts, broadly know how the model works. As such, it would be beneficial for the framework of the HRA to be followed in the model for incorporation of the UNCRC into domestic law.” (Legal profession/organisation)
Just under a fifth of those who provided comments in response to this question (22 respondents) expressed general agreement with the Incorporation Advisory Group convened by Together and the Children & Young People's Commissioner Scotland and supported the HRA framework approach reflected in their draft Children’s Rights (Scotland) Bill 2018 contained within the consultation.[1] These respondents commented that the approach to incorporation based on the HRA framework set out by these key stakeholders is the appropriate way in which to make use of the existing HRA model of protecting human rights. This issue was raised by just over a quarter of third sector organisations (18 respondents). It was also raised by 2 out of 20 public bodies and 2 out of 6 academics.
Over a tenth of those who provided comments in response to this question (17 respondents) noted that the element of the framework that requires legislation to be read and give effect in a way which is compatible with the ECHR should be included. Separate but related to the theme of ensuring legislation is compatible, these respondents emphasised the need for courts and tribunals to interpret and apply primary and secondary legislation in a way which is compatible with the rights given effect by the incorporation of the UNCRC. These interpretative obligations are discussed further in responses to question 21 of this consultation. This view was raised by over a tenth of third sector organisations (10 respondents) and over a tenth of individuals (3 respondents). It was also raised by 1 out of 20 public bodies, 2 out of 6 academics and 1 out of 3 respondents from legal professions/organisations.
Just over a tenth of respondents who provided comments in response to this question (15 respondents) also expressed general support for the direct incorporation of the UNCRC, or commented that whatever framework is used, the UNCRC should be incorporated ‘in its entirety’. These respondents suggested this was necessary to ensure children’s rights are fully protected within Scottish domestic law and that protections are implemented without bias, ensuring the rights of children are protected across the board. Respondents commented that the UNCRC can only fully ensure children’s rights when incorporated as a whole and without any adjustments. This view was raised by just over a tenth of third sector organisations (9 respondents) and over a tenth of individuals (3 respondents). It was also raised by 1 out of 20 public bodies and 2 out of 6 academics.
A further tenth of respondents who provided comments (13 respondents) expressed support for the principle of incorporation in general, which respondents foresee will have a positive impact on children’s rights and represents a positive step forward in Scottish leadership for children’s rights. Rather than focusing on key elements of the HRA framework, these respondents commented that incorporation into domestic law is the most certain way of placing children’s rights high on Scotland’s public agenda and improving the lives of children in Scotland. This view was raised by less than a tenth of third sector organisations (5 respondents) and a quarter of individuals (5 respondents). It was also raised by 2 out of 20 public bodies and 1 out of 6 academics.
“[We consider] that by following this model Scotland will become recognised as a world leader in children’s rights, and that this is a critical step in making Scotland a fair, compassionate and great country in which to grow up. We believe that the time for action is now and call on the Scottish Government to take swift and appropriate steps to enable full incorporation within the life of this parliament.” (Charity / non-profit organisation)
Just over a tenth of those who provided comments in response to this question (13 respondents) noted that, in addition to key elements of the HRA framework, there is a need to include a duty for public authorities to give due regard to the UNCRC while developing policy and making decisions. These respondents noted that a further step should be taken to ensure Scottish public authorities take a preventative approach to protecting children’s rights, through giving due regard to children’s rights before violations occur. This view is discussed more fully in the analysis of responses to questions 2 and 3 of the consultation. It was raised by a tenth of third sector organisations (7 respondents) and a quarter of public bodies (6 respondents).
A further tenth of those who commented on this question (12 respondents) noted that the intersection between incorporating the UNCRC and existing legislation (including the Scotland Act 1998 and the HRA) should be carefully considered when deciding on an appropriate incorporation framework. These respondents emphasised that the scope of devolved powers must inform the overall incorporation approach, including whether or not the HRA framework is an appropriate model to follow. The overall incorporation approach must also be informed by potential tensions between children’s rights as provided for in the UNCRC and existing human rights legislation (including the rights of families and parents). This view was raised by a tenth of third sector organisations (7 respondents) and under a fifth of public bodies (4 respondents). It was also raised by 1 out of 3 respondents from legal professions/organisations who contributed to the consultation.
“Difficulties may arise if there were to be a conflict between the HRA, ECHR and the UNCRC. In our view, the HRA and ECHR would need to prevail. The HRA and ECHR protect the fundamental rights and freedoms which are central to democracy. The Scottish Parliament could not, in any event, pass legislation that conflicted with ECHR.” (Legal profession/organisation)
Other views were expressed by a small number of respondents (between 1 and 7 in total):
- Any framework for incorporation must ensure the rights of particular target groups are protected, such as disabled children (raised by third sector organisations and individuals).
- Any framework for incorporation must ensure children receive sufficient support or advocacy to exercise their rights (raised by third sector organisations and individuals).
- Additional non-legislative activities will also be necessary, alongside a legal framework for incorporation (raised by third sector organisations, a public body and an academic).
- That incorporation based on the HRA framework would reflect the views of the UN Committee on appropriate incorporation of the UNCRC (raised by third sector organisations, a public body and an academic).
- There are some limitations to the framework based on the HRA – specifically, the provisions in ECHR are sufficiently precise to be able to be applied within a court of law, unlike the UNCRC articles which are drafted in broader language to be applicable in different states and contexts (raised by academics, a third sector organisation and a respondent from a legal profession/organisation).
- Due regard should be given to international expertise and experience in incorporating the UNCRC (third sector organisations and academics).
- Respondents would value further clarity on how such an incorporation framework would be implemented in practice (raised by public bodies, one individual and one third sector organisation).
2.2 Question 2
Are there any other aspects that should be included in the framework? Please explain your views.
| Option | Total | Percentage |
|---|---|---|
| Yes | 91 | 56% |
| No | 13 | 8% |
| Don’t know | 15 | 9% |
| Not answered | 25 | 16% |
| Not specified | 18 | 11% |
| n=162 |
| Option | Total | Percentage |
|---|---|---|
| Yes | 91 | 76% |
| No | 13 | 11% |
| Don’t know | 15 | 13% |
| n=119 |
A total of 115 respondents provided written comments to explain their views. The key views arising in these comments are set out below, in order of frequency.
The most popular view expressed by respondents was that alongside a duty to comply and provided substantive legal remedies, it is necessary to legislate to require public authorities to have ‘due regard’ for children’s rights, ensuring a children’s rights-based approach to decision-making, policy and practice. This view was expressed by just over a third who provided comments on this question (40 respondents). These respondents commented that having such a ‘due regard’ duty would commit duty bearers to putting children’s rights at the forefront of their work, thereby upholding the rights of children in the first instance. It was raised by half of third sector organisations (34 respondents) and over a tenth of public bodies (3 respondents). It was also raised by 2 out of 18 individuals.
A similar proportion – over a third of those who responded (38 respondents) – noted that there is a need to ensure a proactive, preventative approach to children’s rights, which addresses potential violations before they occur and before legal remedies become necessary. A proactive element to the framework was considered by respondents to be a key element of creating a strong children’s rights culture and is seen to complement (not replace) reactive legal remedies and duties to comply. Respondents noted that the aim of this preventative approach would be to avoid a breach of children’s rights from occurring, thereby avoiding the challenges and potential negative impact on children’s wellbeing associated with legal routes for redress. These respondents commented that incorporation of the UNCRC should ensure children’s rights are embedded in the way policy and practice is undertaken, and the UNCRC not just used as a mechanism for legal redress. This view was raised by a little under half of third sector organisations (30 respondents). It was also raised by 2 out of 21 public bodies, 2 out of 18 individuals and 4 out of 5 academics.
“Along with the duty to comply, a pro-active duty on public authorities to promote rights-based policy and practice should be included in the legislation. Both duties are required to create a strong framework, that focuses on progressive realisation of children’s human rights.” (Academic)
“Proactive duties and measures to promote rights-based decision-making should be included to complement the reactive duties and measures from the Human Rights Act framework. The ‘due regard’ duty provides an opportunity to hold Ministers to account to help protect children’s interests and influence policy outcomes, promoting rights-based decision-making and preventing breaches from occurring. The benefits of a ‘due regard’ duty has been recognised in a recent report by the Equalities and Human Rights Commission, concluding that the duty has ‘potential to lead to positive actions to enhance the status of treaty rights’.” (Children’s rights organisation)
Just under a fifth of those who responded to this question (18 respondents) noted that the Incorporation Advisory Group’s draft Children’s Rights (Scotland) Bill 2018 includes key measures to ensure ”due regard” and a proactive, preventative approach is taken by public authorities. These respondents make specific reference to this draft Bill, noting that they support the provisions it sets out as they provide a good model for incorporation comprising both proactive and redress elements. This view was expressed by just over a fifth of third sector organisations (15 respondents). It was also raised by 1 out of 21 public bodies and 2 out of 5 academics.
Over a tenth of those who provided comments (16 respondents) commented that the
process for accessing legal remedies in the case of a breach of children’s rights should be clear and accessible for children. These respondents felt that support, advocacy, guidance and clear information should be provided for children to fully exercise their rights. Respondents comment that enforcement mechanisms should be sufficiently powerful to uphold children’s rights and that children should be effectively supported throughout any process of legal redress. Respondents commented that implementation of legal remedies should always be child-centred, and on occasion, respondents referenced specific redress mechanisms which could be considered as appropriate models for accessible redress, notably Children’s Hearings and less formalised tribunals for resolution. This issue was raised by a tenth of third sector organisations (7 respondents), just over a tenth of public bodies (3 respondents) and just over a fifth of individuals (4 respondents). It was also raised by 2 out of 5 academics.
“The right to independent advocacy for children and young people should be enshrined within the framework, to support their Article 12 rights and provide an accessible mechanism for children and young people to seek redress where their UNCRC rights have not been upheld.” (Charity / non-profit organisation)
Over a tenth of those who provided comments in response to this question (12 respondents) noted that regardless of any decision taken relating to the framework for incorporation, the UNCRC and associated rights and duties should be communicated clearly and effectively with duty bearers and rights holders. These respondents commented that any framework for incorporation should be clear and practical. Comprehensive, accessible guidance should be produced for duty bearers to support preparation and planning, as well as training for staff in public authorities and those implementing Children’s Rights and Wellbeing Impact Assessments (CRWIA). The UNCRC, the incorporation framework, and rights to redress should be communicated in an accessible, inclusive manner to rights holders, to support them to exercise their rights. It was raised by under a tenth of third sector organisations (5 respondents) and a quarter of public bodies (5 respondents). It was also raised by 1 out of 18 individuals.
“To support and facilitate incorporation, we would support the development of comprehensive, accessible guidance, detailing how existing domestic legislation and processes comply with (or potentially go beyond) the UNCRC. To address concerns within public authorities about the potential impact of incorporation, and to support planning and preparation, we believe that this process should be undertaken before the UNCRC is given effect in domestic law.” (Other category of organisation)
Over a tenth of those who provided comments in response to this question (12 respondents) expressed the view that the Rights of Children and Young Persons (Wales) Measure 2011 is seen as a model for a ”due regard” requirement. As with the Incorporation Advisory Group’s Children’s Rights (Scotland) Bill 2018, these respondents noted that the Welsh Measure example is an existing framework of incorporation that addresses the need for a preventative, proactive approach to incorporation. Respondents report that the Welsh Measure can therefore be used as a model for a suitable incorporation framework in Scotland, ensuring that the theme of prevention and ‘due regard’ discussed above is incorporated effectively. This view was raised by under a fifth of third sector organisations (11 respondents). It was also raised by 1 out of 5 academics.
Over a tenth of those who provided comments (12 respondents) expressed the view that CRWIAs must be included within the framework for incorporation. These respondents see CRWIAs as sitting alongside a preventative, proactive approach to UNCRC incorporation. Legislation and policy developments should include a consideration of their potential impact on children’s rights as identified in the incorporated UNCRC. Such assessments ensure that appropriate due diligence is carried out before policies or legislation are implemented, and that statements of legislative compatibility are based on evidence. This view was raised by just over a tenth of third sector organisations (9 respondents) and just over a tenth of public bodies (3 respondents).
“We consider that the framework should also include a requirement that any legislation introduced in the Scottish Parliament should be accompanied by a child’s rights impact assessment (CRIA). Those carrying out the children’s right impact assessment must have training on the UNCRC and children’s rights. This would aid the Scottish Parliament’s scrutiny of the proposed Bill’s compliance with the UNCRC.” (Legal profession/organisation)
Under a tenth of those who provided comments to this question (10 respondents) noted that, alongside the legal framework for incorporation, non-legislative actions will also be necessary. Key examples of the types of activities noted by these respondents include producing a Children’s Rights Scheme, undertaking evaluations or audits, establishing a robust compliance reporting framework and establishing mechanisms for children and families to participate in an advisory capacity. These mechanisms are seen to add value to a legal framework by strengthening transparency and accountability. These issues were raised by just under a tenth of third sector organisations (6 respondents) and just under a fifth of public bodies (4 respondents).
Under a tenth of those who provided comments (8 respondents) expressed the view that the rights of particular groups of children require additional focus through incorporation of the UNCRC. These respondents commented that particular groups of children tend to face additional barriers in exercising their rights. Respondents provided examples of the types of groups which need particular consideration within the incorporation framework (including disabled children, looked after children and deaf or blind children) as well as national issues which need particular consideration (such as gender inequality). This view was raised by under a tenth of third sector organisations (6 respondents). It was also raised by 2 out of 18 individuals.
Under a tenth of those who provided comments (7 respondents) noted that as part of giving due regard to children’s rights, public authorities should engage and consult with children and young people as part of their rights-based decision-making. These respondents reported that children have a right to a say in decisions which affect their lives, including the design of an incorporation framework, promotion of children’s rights as provided for in the UNCRC and evaluation of the impact of UNCRC incorporation. On occasion, respondents specify that this could be achieved through the establishment of an advisory group. This view was expressed by under a tenth of third sector organisations (4 respondents) and over a tenth of public bodies (3 respondents).
“Youth voice is important as everyone deserves a say in decisions that will affect them, even young people! Young voices can be used to create the changes needed by everyone, and can offer a different perspective from the situations we're experiencing right now!”
“Youth participation and inclusion allows young people to feel listened to and have somewhere that they can be themselves and say what they're thinking. It allows young people and adults to work together to find solutions that suit everybody.” (Young people represented in response by public body)
2.3 Question 3
Do you agree that the framework for incorporation should include a”duty to comply” with the UNCRC rights? Please explain your views.
| Option | Total | Percentage |
|---|---|---|
| Yes | 125 | 77% |
| No | 7 | 4% |
| Don’t know | 3 | 2% |
| Not answered | 13 | 8% |
| Not specified | 14 | 9% |
| n=162 |
| Option | Total | Percentage |
|---|---|---|
| Yes | 125 | 93% |
| No | 7 | 5% |
| Don’t know | 3 | 2% |
| n=135 |
A total of 132 respondents provided written comments to explain their views. The key themes arising in these comments are set out below, in order of frequency.
The most popular view expressed by respondents was that a duty to comply will ensure full legal compliance with UNCRC, by identifying an unequivocal responsibility for public authorities within Scottish domestic legislation. This view was expressed by a little under half of those who provided comments (59 respondents). Compared to a ‘due regard’ duty, these respondents noted that a duty to comply will ensure that the UNCRC will become binding, not only guiding, for public authorities. Respondents commented that such a clear demand for compliance will ensure public authorities take appropriate actions and
make changes to their policy and practice. Following on from this, public authorities can be held accountable for their actions. Respondents commented that it is only through a duty to comply that incorporation of the UNCRC will have full legal force in Scotland. This view was raised by over half of third sector organisations (41 respondents), just under a third of public bodies (8 respondents) and just over a third of individuals (7 respondents). It was also raised by 2 out of 7 academics.
“Anything other than the inclusion of a”duty to comply” provision would not be full incorporation. We agree that incorporation must make children’s human rights binding and not just guiding. A duty to comply places binding duties on public authorities to respect and protect children’s rights and allows children to challenge breaches of their rights in domestic courts.” (Charity / non-profit organisation)
Over a quarter of those who provided comments in response to this question (36 respondents) expressed the view that a duty to comply will ensure substantive legal redress is guaranteed when necessary. These respondents commented that a duty to comply ensures that rights holders have clear, legal recourse options when their rights are violated. A legal structure must be in place to ensure rights holders can challenge duty bearers in a court of law if violations of their rights occur. As such, respondents commented that the incorporation of the UNCRC would only be meaningful if incorporation includes robust enforcement mechanisms; such mechanisms can only exist alongside a clear legal duty to comply. This issue was raised by just over a third of third sector organisations (28 respondents), just over a tenth of public bodies (3 respondents) and over a tenth of individuals (3 respondents). It was also raised by 2 out of 6 academics.
A quarter of those who provided comments (33 respondents) noted that a duty to comply is a more robust mechanism for the protection of children’s rights than a duty of due regard. These respondents noted that, by itself, a due regard duty can be inconsistently and ineffectively applied by public authorities, leading to a negative impact on children’s rights (particularly groups of children who face additional barriers to exercising their rights). A duty of due regard only could be easily brushed aside and does not provide sufficient guarantees that children’s rights will be protected in practice. On occasion, respondents commented that a duty to comply focuses on ensuring positive outcomes for children, while there is a risk that a duty of due regard only could focus primarily on the decision-making process. This issue was raised by just under a fifth of third sector organisations (14 respondents), just over half of public bodies (14 respondents) and over a fifth of individuals (3 respondents). It was also raised by 2 out of 7 academics.
“We believe that the framework for incorporation should include a ‘duty to comply’ with the UNCRC rights. The Children and Young People (Scotland) Act 2014 already contains a duty on public bodies to report on implementation of the UNCRC. However this does not place a duty on public bodies to actually implement the UNCRC, rather it asks public bodies to report on work related to the UNCRC. Placing a ‘due regard’ within the framework, rather than a ‘duty to comply’, may lead to a superficial approach to children’s rights and contradict the intention to enhance children’s rights in Scotland.” (Public body)
Under a quarter of those who provided comments in response to this question (31 respondents) commented that a duty to comply will ensure positive outcomes for children. These respondents noted that a duty to comply is likely to have a positive impact on the protection of children’s rights in Scotland by bringing about ‘real change’ in public policy and practice. A duty to comply comprises a duty to ensure outcomes which are compliant with provisions set out in the UNCRC, rather than a due regard duty which ensures consideration of UNCRC provisions. On occasion, respondents emphasise that a duty to comply is necessary to ensure positive outcomes for vulnerable children in particular. This view was expressed by just over a quarter of third sector organisations (19 respondents) and a third of public bodies (9 respondents). It was also raised by 2 out of 20 individuals.
“A duty to comply has an emphasis on outcome rather than process. It will result in the realisation of rights, rather than just the consideration of rights”. (Public body)
Under a quarter of those who provided comments (30 respondents) emphasised that there is a need for the framework of incorporation to include both a duty to comply with and a duty to give due regard to the UNCRC. These respondents felt that this dual approach is necessary to secure both a proactive/preventative approach to children’s rights, as well as ensuring compliance and redress mechanisms. They also commented that compliance with the UNCRC can be seen as a minimum standard for Scotland, with a duty to give due regard included as an addition to embed the UNCRC within policy and practice. Including both duties within the framework for incorporation is identified as a holistic approach which will both ensure compliance amongst public authorities and encourage a cultural and behavioural change in how children’s rights are considered within the Scottish policy and legislative context. This issue was raised by just under a third of third sector organisations (23 respondents) and over a fifth of public bodies (4 respondents). It was also raised by 1 out of 20 individuals and 2 out of 7 academics.
“It must be reiterated, the UNCRC is a floor, not a ceiling for rights protection. A duty to comply would ensure that the UNCRC is always at the forefront of law and policy-making and deliver the basic minimum standards for children’s rights protections, though clearly in anticipation that Scotland will go above the bare minimum if it is truly to be the ‘gold-standard’. This proactive dimension to the draft Children’s Rights (Scotland) Bill aids in guarding against children needing to take their grievances to court by working as a preventative duty.” (Academic)
Under a tenth of those who provided comments (8 respondents) commented that the availability of sufficient resources for public bodies for implementing a duty to comply, as well as practical issues surrounding implementation, should also be considered. These respondents noted that resources and a clear responsibility and commitment amongst public bodies will be necessary for such a duty to be effective in upholding children’s rights. They commented that public bodies will need capacity and time to review their systems, policies and processes to ensure compliance. New legislation such as the legislation which will put the incorporation of the UNCRC onto a statutory footing, must be introduced alongside sufficient resources, otherwise respondents felt there would be a risk of incompatibility between the actions of public bodies and the rights enshrined in the UNCRC, regardless of the intentions of the public bodies. This view was expressed by under a tenth of third sector organisations (4 respondents) and just over a tenth of public bodies (3 respondents). It was also raised by 1 out of 7 academics.
“What is far more important, is that the incorporation of the UNCRC is fully implemented and resourced. There are already standards that operate across Scotland that seek to improve outcomes for children and young people. What makes the difference, is widespread understanding and sense of collective responsibility to achieve good outcomes; [we] would expect there to be planning and resourcing to ensure this is achieved.” (Charity / non-profit organisation)
Under a tenth of those who provided comments (7 respondents) noted that associated guidance on the expectations to be placed on public bodies and how they should interpret these new duties will be necessary to support effective implementation. These respondents suggested that if a duty to comply is introduced, duty holders (public bodies) must truly understand the scope and purpose of these duties, including how their policy and practice should reflect this duty. Respondents commented that language should be clear and accessible – for both duty bearers and rights holders to understand the new duty – and that the difference between a duty to comply and a duty to give due regard should be clearly set out. This issue was raised by less than a tenth of third sector organisations (4 respondents). It was also raised by 2 out of 27 public bodies and 1 out of 7 academics.
The few respondents who did not agree or did not give a definite response were more likely to express concerns around resourcing and implementation or discuss the respective merits of both a duty to comply and a ‘due regard’ approach without stating a particular preference. For example, respondents note that while a duty to comply is a more robust option for securing children’s rights, it is likely to lead to added complexity in public policy and practice, whereas a duty to give due regard is less enforceable but provides scope to balance conflicting priorities. This view was expressed by 2 out of 7 academics and 1 third sector organisation.
“There are differing views as to which duty would be most appropriate in relation to the incorporation of the UNCRC. We note that there are an increasing number of duties imposed on public authorities, and that this is likely to continue to grow. Consideration should be given to how to ensure that public authorities have the necessary resources and capacity to meaningfully comply with the range of duties and are supported to manage situations where different duties may conflict. Failure to do so may result in a situation where the issues, including children’s rights, that are intended to be mainstreamed are lost in the wider context of compliance, only superficially addressed due to pressures of time and resource and desensitisation to the number of checks required.” (Legal profession/organisation)
2.4 Question 4
What status, if any, do you think General Comments by the UN Committee on the Rights of the Child should be given in our domestic law?
A total of 121 respondents provided written comments in response to this question.
Respondents indicated in their consultation responses that the UN Committee’s General Comments should be used as guidance, outlining a range examples of ways in which they could be used.
The most popular view expressed by respondents was that the UN Committee on the Rights of the Child’s General Comments and Concluding Observations provide valuable interpretive guidance and should be used as an aid to interpret and ensure effective implementation of the UNCRC. This view was expressed by around two thirds of those who provided comments (76 respondents). These respondents noted that the General Comments by the UN Committee provide authoritative general guidance on the protection of children’s rights under the Convention. Respondents observed that the General Comments should be taken into account when interpreting and applying the articles in the context of Scottish domestic law. This view was expressed by just over two thirds of third sector organisations (47 respondents), just under two thirds of public bodies (15 respondents) and a third of individuals (7 respondents). It was also raised by 5 out of 6 academics and 1 out of 2 respondents from legal professions/organisations.
“General Comments… help to attach meaning to what can be perceived as abstract rights. The General Comments are authoritative interpretations of individual human rights or of the legal nature of human rights’ obligations. They provide orientation for the practical implementation of human rights and form a set of criteria for evaluating the progress of states in their implementation of these rights.” (Children’s Rights Organisation)
Linked to the point above, over a third of those who provided comments (44 respondents) noted that courts should have regard to the UN Committee’s General Comments when determining children's rights cases. These respondents noted that the General Comments should be used to inform court decisions around children’s rights, drawing on the authoritative guidance and international expertise they contain. This view was expressed by just under half of third sector organisations (29 respondents) and just over a third of public bodies (8 respondents). It was also raised by 2 out of 21 individuals, 4 out of 6 academics and 1 out of 2 legal professions/organisations who responded.
“In our view legislation should ensure that UN Committee General Comments and Concluding Observations are taken into account by public authorities when exercising their functions which directly or indirectly affect children, and by the Courts when deciding cases which engage children’s rights.” (Academic institution)
Under a quarter of those who provided comments (29 respondents) noted that General Comments and Concluding Observations provide a source of international expert opinion. These respondents suggested that drawing on the learning and expertise included in General Comments will enable Scotland to keep pace with developments in international law and practice, while retaining judicial independence. Using the General Comments to aid interpretation and legislative processes would, respondents proposed, help ensure that children’s rights in Scotland are promoted, supported and protected in a way that is consistent with current internationally agreed understanding of the UNCRC, drawing on the experiences of other countries that have incorporated the UNCRC. This view was expressed by a third of third sector organisations (22 respondents) and under a fifth of public bodies (4 respondents). It was also raised by 2 out of 21 individuals and 1 out of 6 academics.
“The process of realising and operationalising children's rights in practical, real-world, everyday terms that matter to children's experience is an ongoing one, driven by continued advances in theory, research, policy, and practice…. Adopting a document from 30 years ago as a static expression of those rights is inadequate as it would ignore massive developments in understanding and enacting best practices in this area.” (Individual respondent)
Just over a tenth of those who provided comments (16 respondents) noted that the UN Committee’s General Comments and Concluding Observations are not legally binding in international law and should not be given any status under domestic law, other than being used as guidance. To give General Comments legal status, these respondents argued, risks leading to a situation where the Scottish Government is required to comply with decisions taken elsewhere. Scottish courts should be free to interpret the wording of the UNCRC. It was suggested that a legal requirement for Scottish domestic law to give effect to recommendations set out in General Comments or Concluding Observations would make the UN Committee the ‘arbiter of children’s rights in Scotland’, circumventing the Scottish Parliament and preventing Scotland from development more stringent requirements to protect children’s rights. This point was raised by over a tenth of third sector organisations (10 respondents). It was also raised by 2 out of 23 public bodies, 1 out of 21 individuals, 1 out of 6 academics and 2 out of 2 respondents from legal professions/organisations.
“The general comments of the UN Committee on the Rights of the Child are not legally binding in international law nor are the Observations of the Committee in reports made under the UNCRC in response to reports made by states.” (Legal profession/organisation)
Over a tenth of those who provided comments (13 respondents) felt it is essential that, when taking into consideration this guidance, courts and public authorities interpret the guidance as it applies in a Scottish context, aligning the guidance to Scottish domestic law. Respondents underlined the need to apply learning from the General Comments and Concluding Observations in a way that can be adapted to fit to the Scottish context. While the General Comments are seen as being valuable as authoritative comments, respondents noted the need to allow Scotland to develop an approach to the application of the UNCRC that is suitable to its particular circumstances and context. This point was raised by under a tenth of third sector organisations (5 respondents) and just over a fifth of public bodies (5 respondents). It was also raised by 2 out of 21 individuals and 1 out of 6 academics.
“Such comments and reports may be taken into account by the Courts as an aid to interpretation but should not be binding in any way to allow domestic jurisprudence to develop taking into account the unique Scottish context and individual facts and circumstances within that context.” (Public body)
“Our context as a nation should always be the driver behind our children's needs and rights and we should not incorporate something just because another country did it well. Consultation and context should be key principles.” (Individual respondent)
A tenth of those who provided comments (12 respondents) felt that the General Comments and Concluding Observations should be given a high status or the ‘highest status’. These respondents noted that the General Comments should be given high status and incorporated in Scottish domestic law, where possible. These also argued that direct incorporation into law would signal clearly that change is required to promote and protect children’s rights. This view was expressed by under a tenth of third sector organisations (6 respondents). It was raised by 1 out of 21 public bodies and by 5 out of 21 individuals.
“General comments by the UN Committee on the rights of the child and observations of the committee should be given very high status in Scottish domestic law, where compatible and necessary.” (Individual)
2.5 Question 5
To what extent to you think other possible aids would provide assistance to the courts in interpreting the UNCRC in domestic law?
A total of 106 respondents provided written comments in response to this question.
The most popular view expressed by those who commented on this question was the need to learn from countries where the UNCRC has been incorporated into domestic law. This view was expressed by two-fifths of those who provided comments (43 respondents). There are lessons to be learnt from how other countries have implemented the rights set out in the UNCRC and how these have been actioned or interpreted through courts. In particular, Norway, Sweden and Spain were cited repeatedly as countries where case law is developing that could be used by courts in Scotland to aid interpretation. In addition, there may be good practice to be applied from other devolved administrations, including the Welsh Government. Scotland should look to learn from international judgements, previous cases and challenges relating to children’s rights, particularly where complaints have been upheld by the UN Committee. This view was expressed by just over half of third sector organisations (30 respondents) and just under a third of public bodies (7 respondents). It was also raised by 2 out of 18 individuals and 3 out of 6 academics.
“We recognise that courts already have extensive experience and expertise in the interpretation of EU and international law, but support the idea that courts should be able to consider adjudications in other jurisdictions when interpreting UNCRC in Scotland – especially whilst a local body of case law is being built.” (Public body)
“We consider that the other aids provided will be of great assistance to the courts in terms of providing direction, experience and understanding of the applications of the provisions. Particularly the courts decisions of other countries which have also transposed the UNCRC into domestic law, especially if those countries are of a similar size and context to Scotland.” (Charity / Non-profit)
Just under a quarter of those who provided comments (24 respondents) noted that courts would be assisted by referring to international jurisprudence that offers insights and learning for the judicial system in Scotland. This includes national case law, UNCRC General Comments and Optional Protocol 3 communications procedures. These respondents also frequently referred to the need to draw on lessons from the European Court of Human Rights. Respondents agreed with the point in the consultation paper that courts may obtain assistance from decisions made under other international treaty regimes such as the ECHR where a right in the UNCRC overlaps with a right in the ECHR. This issue was raised by a little under a third of third sector organisations (16 respondents) and just over a fifth of public bodies (5 respondents). It was also raised by 1 out of 18 individuals and 2 out of 2 legal professions/organisations.
“There is developing jurisprudence through case law from countries that have already incorporated the UNCRC, such as Norway and Iceland. In addition, courts will be able to draw from wider jurisprudence from countries that have incorporated wider international human rights protections into law, such as South Africa.” (Children’s Rights organisation)
The same proportion – under a quarter or 24 respondents – emphasised that the Courts are experienced in interpreting, and adjudicating on, human rights cases which will aid them in interpreting rights under the UNCRC. These respondents noted that Scottish courts and tribunals already make reference to the UNCRC in relevant cases and draw from appropriate sources where necessary. Scotland and the wider UK are already accustomed in doing this, including when considering cases under the HRA and EU law. Respondents referred to examples of the General Principles of the UNCRC that are already contained in Scottish domestic law, such as Article 3 which describes the best interests of the child (Children (Scotland) Act 1995) and courts are used to dealing with them.[2] This view was expressed by just over a quarter of third sector organisations (15 respondents), under a fifth of public bodies (4 respondents) and under a fifth of individuals (3 respondents). It was also raised by 2 out of 6 academics.
“Domestic courts in Scotland are increasingly familiar with interpreting laws in line with human rights principles. They have had to do so because of the HRA and related ECHR jurisprudence. Domestic courts have already been engaging with key principles of the UNCRC, as they are presently included in domestic law. For example, children have individual participation rights in such legislation as the Children (Scotland) Act 1995 and the Children’s Hearing (Scotland) Act 2011.” (Academic respondent)
A tenth of those who provided comments (11 respondents) suggested a need for greater support and representation for children during legal processes. This, it was suggested by respondents, could involve greater use of child advocates and arrangements to ensure contributions from trusted community representatives to support children (e.g. schools, police, social workers) during hearings or cases. This issue was raised by under a tenth of public bodies (3 respondents) and a third of individuals (6 respondents). It was also raised by 1 out of 6 academics.
Under a tenth of those who provided comments (9 respondents) suggested that further training for courts, legal practitioners and other stakeholders could be of assistance in preparing for the interpretation of the UNCRC. This could include the use of case studies, to raise awareness of the relevance of the UNCRC to their work. These respondents referred to previous training programmes developed for the legal profession and courts to assist with the interpretation of the ECHR and suggested that similar or equivalent programmes should be developed in the context of the UNCRC, drawing on international experiences and cases. There were also suggestions that training should target public agencies to raise awareness of the UNCRC to their work, including across agencies who may not consider their work to be principally focused on children or children’s rights. This view was expressed by under a fifth of public bodies (4 respondents). It was raised by 3 out of 55 third sector organisations and 1 individual out of 18.
A number of other points were raised by small numbers of respondents. These are not broken down by sub-group in view of the small numbers of responses in question.
Respondents also suggested that better and clearer information and guidance is necessary to help children and their families to understand the legal processes through which decisions about children’s rights are made. It was suggested that the Scottish Government should take action to raise awareness of the UNCRC among parents, including a ‘comprehensive and sustained communications programme targeting parents and those with parenting responsibilities’. This could aim to provide clearer explanation to parents and the wider public about what the UNCRC is; how it is intended to support children; the steps parents will be able to take to support their child in defending their rights if they are infringed.
Respondents referred to specific legislative aids to help articulate the UNCRC’s provisions more clearly to help embed them in the existing framework of Children’s Rights. This could involve statutory guidance and/or non-statutory guidance to explain the content and corresponding duties on public authorities and provide examples of their operationalisation.
While the UK is not a signatory to Optional Protocol 3, some respondents noted that Scottish courts should be enabled to refer to decisions or complaints upheld by the UN Committee when interpreting UNCRC rights.[3] Communications under Optional Protocol 3 can help public bodies interpret the UNCRC articles and a duty to take these into account could strengthen the interpretation of the UNCRC in domestic law.
Echoing some of the earlier points outlined, some respondents felt that additional aids are unnecessary. Respondents noted that they have confidence in the ability of Scottish courts to adjudicate on social rights. The HRA and EU law are already used in consideration of cases and therefore courts will have the expertise and knowledge to interpret the UNCRC in Scottish domestic law.
2.6 Question 6
Do you agree that it is best to push forward now with incorporation of the UNCRC before the development of a Statutory Human Rights Framework for Scotland? Please explain your views.
| Option | Total | Percentage |
|---|---|---|
| Yes | 113 | 70% |
| No | 12 | 7% |
| Don’t know | 11 | 7% |
| Not answered | 17 | 10% |
| Not specified | 9 | 6% |
| n=162 |
| Option | Total | Percentage |
|---|---|---|
| Yes | 113 | 83% |
| No | 12 | 9% |
| Don’t know | 11 | 8% |
| n=136 |
A total of 126 respondents provided written comments in response to this question.
The most popular view expressed by respondents who commented on this question was that the Scottish Government should push forward with incorporation at the earliest possible opportunity and certainly within the current session of the Scottish Parliament. This view was expressed by over two-fifths of those who provided comments (52 respondents). It was suggested that a Bill should be introduced this year, allowing sufficient time for the Scottish Parliament to give it proper scrutiny. A number of respondents noted that the First Minister had committed to incorporating the UNCRC during the current parliamentary session and were keen for this commitment to be delivered. Following on from the above point, respondents see incorporation of the UNCRC as the culmination of a long-standing campaign and suggested that was no reason for any delay. This view was expressed by just over two-fifths of third sector organisations (31 respondents), just over two-fifths of public bodies (11 respondents) and just over a quarter of individuals (5 respondents). It was also raised by 3 out of 6 academics and 2 out of 2 legal professions/organisations.
“The campaign to incorporate the UNCRC in Scotland has been active for many years and has garnered a wide breadth is support. It is essential that the Scottish Government delivers on its commitment to incorporate within this session of Parliament.” (Children’s Rights organisation)
Following a similar viewpoint, around a fifth of respondents (25 respondents) suggested that incorporation of the UNCRC should not wait until the development of the Statutory Human Rights Framework of Scotland and should progress as soon as possible. These respondents broadly welcomed the intention set out in December 2018 by the First Minister’s Advisory Group on Human Rights Leadership to develop a Statutory Human Rights Framework; however this should not hold up activity to incorporate the UNCRC. It was noted that incorporating UN treaties into Scottish domestic law is a complex and lengthy task, requiring significant additional work. Considerable progress has already been made to transpose elements of the UNCRC into Scottish domestic law and it was suggested that the next step is direct incorporation.
In addition the following associated issues were raised:
- Incorporation of UNCRC prior to the development of the Statutory Human Rights Framework could enhance practice and standards – subsequently the process of incorporating the UNCRC would inform the Statutory Human Rights Framework. It could provide a ‘useful roadmap’ for the incorporation other UN treaties which will form the Statutory Human Rights Framework.
- Some respondents noted that transposing the rights of children under the UNCRC into another framework could result in less importance being placed on children’s rights than if it is incorporated into Scottish domestic law ‘in its own right’. Respondents suggested that a sounder approach would be to establish the UNCRC as a standalone raft of rights, referenced in any future Statutory Human Rights Framework.
These points were raised by just over a fifth of third sector organisations (16 respondents), under a fifth of public bodies (4 respondents) and a sixth of individuals (3 out of 18 respondents). It was also raised by 2 out of 6 academics.
“Yes. [Incorporation of the UNCRC] is a separate process that has already been initiated and should be completed independently. Once the proposals for the Statutory Human Rights Framework are fully developed, measures can be adopted to ensure the coherence and complementarity between both sets of instruments.” (Individual respondent)
“There should not be a delay for the Statutory Human Rights Framework. UNCRC incorporation should contribute to the development of SHRF rather than the other way around.” (Children’s rights organisation)
Under a fifth of those who provided comments (21 respondents) argued that there is a need to push forward with incorporation of the UNCRC while there is consensus and momentum. There is commitment and cross-party political support in place for incorporation, it was suggested, which should be capitalised upon. Linked to this, these respondents noted concerns that external factors could delay implementation if incorporation isn’t pushed forward soon. In particular, respondents referred to the following factors which could impact on the context for incorporation in future: changes in levels of political support for the incorporation of the UNCRC; UK withdrawal from the EU could have implications for the rights framework for children and disabled people set out in the EU Charter of Fundamental Rights. This view was expressed by over a quarter of third sector organisations (19 respondents). It was also raised by 1 out of 18 individual respondents and 1 out of 6 academics.
“There is currently strong political support across the Scottish Parliament for an emphasis on rights in legislation and specifically for incorporation of the UNCRC. However, the UK’s decision to leave the EU may produce uncertainties in UK legislation that would support an argument for establishing procedures to plan for a Bill to be passed in the Scottish Parliament in this Parliamentary session. Incorporation within this time period has the potential to mitigate the impact of a range of issues on children’s rights, including the impact of welfare reform on children in Scotland.” (Public body)
Under a tenth of those who provided comments (11 respondents) noted that it would be better to include the incorporation of the UNCRC as part of an inclusive Statutory Human Rights Framework for Scotland. This was seen by some as being a more holistic approach, setting out in one framework the rights belonging to all people in Scotland. These respondents noted that a comprehensive and consolidated framework of human rights would be easier for people in Scotland to understand, setting out how children’s rights sit within a broader framework. Respondents also cited concerns about possible confusion when developing a Statutory Human Rights Framework at a later date. This view was expressed by 5 out of 72 third sector organisations and 3 out of 26 public bodies. It was also raised by 2 out of 18 individual respondents and 1 out of 6 academics.
“The UNCRC should be included within the development of a Statutory Human Rights Framework so that legislation is both comprehensive and clear enough for rights holders to understand.” (Religious/faith organisation)
2.7 Question 7
We would welcome your views on the model presented by the advisory group convened by the Commissioner for Children and Young People in Scotland and Together (the Scottish Alliance for Children’s Rights).
A total of 123 respondents provided written comments in response to this question.
The most popular view expressed by respondents who commented on this question was that the model presented by the Commissioner for Children and Young People in Scotland and Together sets out children’s rights clearly and comprehensively. This view was expressed by over a third of those who provided comments (41 respondents). Respondents commented that the model reflects the holistic nature of the UNCRC, highlighting the principle that all rights under the UNCRC are universal, interrelated and indivisible. Several respondents also noted that the model set out is future-proofed, insofar as the proposed legislation will ensure that any further powers devolved to the Scottish Parliament are also covered under the Act. These respondents felt that the model represented a comprehensive approach to incorporation by proposing to draw down the Preamble, articles of the UNCRC (1-42) and the First and Second Optional Protocols to make them part of Scottish domestic law. This view was expressed was raised by just over two-fifths of third sector organisations (30 respondents), over a quarter of public bodies (6 respondents) and just under a fifth of individuals (3 respondents). It was also raised by 1 out of 7 academics.
“It is a simple and clear mechanism for incorporation recognising and dealing with the complexities of a devolved nation. We believe it offers a straightforward route to achieving full incorporation and, as such, would be happy to see it or a very similar model adopted. In particular, as an organisation supporting families, we welcome the drawing down of the Preamble, as well as the Articles and First and Second Protocols. The Preamble recognises the family as the best place for children, sees parents as rights holders and places obligations on the State to provide them with support in this duty.” (Charity/Non-profit)
“We fully support the model of direct incorporation put forward by the Commissioner for Children and Young People in Scotland and Together. The UNCRC was drafted in such a way that it can be directly incorporated into domestic law and is comprehensive in that is the rights contained include both civil and political rights, as well as social, cultural and economic ones. We therefore believe that the full UNCRC and its optional protocols should be incorporated and no article should be omitted or altered.” (Charity/Non-profit)
A quarter of those who provided comments (31 respondents) noted that the proposed model of incorporation includes both a duty to comply with the UNCRC and a ‘due regard duty’. These respondents noted that it therefore combines proactive and reactive approaches to ensure children’s rights are promoted and protected. These twin duties will ensure that there is a system in place that ensures redress where children’s rights are breached; and also that the Scottish Government, public authorities and other duty bearers are required to act in the best interests of all children in Scotland. This view was expressed by just over a third of third sector organisations (25 respondents). It was also raised by 2 out of 21 public bodies, 1 out of 18 individuals and 3 out of 7 academics.
“The model aims to ensure a proactive culture of children’s rights across government at all levels in Scotland, embedding children’s rights-based approaches to policy and legislative decision making at an early stage, while also providing redress where children’s rights are breached. It seeks to ensure that government at all levels is able to act in the best interests of all children in Scotland.” (Charity / Non-profit)
A fifth of those who provided comments (24 respondents) expressed the view that the proposed model seeks to promote and embed children's rights in policy and legislation. It puts children’s rights at the forefront of policy making and law-making processes. These respondents noted that it promotes a culture of children’s rights at all levels of government. They noted that it provides a clear framework of rights for the Scottish Parliament and other public authorities, thereby ensuring that they have considered the wide range of children’s rights that could be impacted by government action, law or policy. This point was raised by just over a fifth of third sector organisations (15 respondents), just over a tenth of public bodies (3 respondents) and just under a fifth of individuals (3 respondents). It was also raised by 3 out of 6 academics.
A little under a fifth of those who provided comments expressed support for the model but provided very little or no additional commentary or reasons for their support (20 respondents).
A tenth of those who provided comments in response to this question (12 respondents) asserted that the model enables the Scottish Government to apply the UNCRC as a ‘minimum standard’, providing scope to further enhance children’s rights over and above the provisions in the UNCRC. These respondents noted that the Scottish Government has set out its ambition to ‘go further’ than the UNCRC where possible, something that is endorsed by children and young people, based on submissions by children’s rights organisations. Respondents expressed support for this idea, noting that Scotland has an opportunity to become a world leader and push the boundaries by bringing forward legislation and policy that exceeds the standards required by the UNCRC. This view was expressed by just over a tenth of third sector organisations (10) and 2 out of 18 individuals.
A tenth of those who provided comments (12 respondents) described the model and the Incorporation Advisory Group’s draft Children’s Rights (Scotland) Bill as the ‘gold standard’ model of UNCRC incorporation. These respondents noted that the Bill provides for a model of direct incorporation, specifying that the articles of the UNCRC and Optional Protocols One and Two should be part of Scottish domestic law. Several respondents commented that this is consistent with the UN Committee’s statement that ‘States Parties are required to implement the CRC as a whole, in recognition of the status of children as rights holders and in light of the indivisible and inter-dependent nature of CRC provisions’. This point was raised by just under a fifth of third sector organisations (12 respondents).
Under a tenth of those who provided comments (11 respondents) highlighted that the model draws on best practice internationally and the experiences and expertise developed in other countries. These respondents noted that the model was developed with input from a team of international and Scottish experts (the Incorporation Advisory Group) from academic, legal and children’s rights backgrounds, with extensive knowledge of the UNCRC, incorporation, and the Scottish legal system. In addition, the model uses international learning from countries such as Norway, Sweden, Finland and Belgium where the UNCRC has already been incorporated, as well as careful consideration of the Scottish context. This view was expressed by a tenth of third sector organisations (7 respondents). It was also raised by 2 out of 21 public bodies and 2 out of 7 academics.
“We fully support the model for full and direct incorporation put forward by the Commissioner for Children and Young People in Scotland and Together. This is based on advice from global experts on children’s human rights and incorporation and offers an approach which is based on effective approaches from the experience of other countries and the advice of the UN Committee on the Rights of the Child.” (Charity / Non-profit organisation)
Over a tenth of those who provided comments in response to this question (18 respondents) voiced reservations or opposition to the model presented by the Incorporation Advisory Group. This comprised under a tenth of third sector organisations (6 respondents), a third of public bodies (7 respondents). It was also raised by 1 out of 18 individuals, 2 out of 7 academics and 2 out of 2 legal professions/organisations. Reasons for their reservations included:
- They felt that direct incorporation would leave the UNCRC articles open to interpretation, which could impact on how consistently they were applied.
- Unless the wording of the UNCRC was tailored/modified it was suggested that practical and constitutional difficulties could arise – respondents suggest that some articles are ‘instructions to states’ rather than the ‘conferral of rights’ and may need to be re-worded to ensure clarity in law.
- Respondents foresee difficulties, in the event of direct incorporation, in enforcing rights set out in the UNCRC that relate to reserved matters.
- These respondents tended to favour transposition of the UNCRC so that articles are framed or tailored explicitly to Scottish domestic law.
2.8 Question 8
How should the issue of whether particular UNCRC rights are self-executing be dealt with?
A total of 101 respondents provided written comments to explain their views. The key themes arising in these comments are set out below, in order of frequency.
The view presented most frequently by those who responded to this question was that this issue (of how to deal with self-executing rights) is not a concern in the event of direct incorporation). This view was raised by just under two-fifths of those who provided comments (38 respondents). These respondents were in support of Together Scotland’s statement which outlined that they”do not believe that the concerns raised by Scottish Government are relevant to Scotland. The act of incorporating the UNCRC into Scots law is what gives UNCRC rights practical effect”, it was suggested. In light of this point, respondents suggested that all articles within the UNCRC should be directly incorporated into Scottish law as this removes the issue of the necessity to deal with whether particular UNCRC rights are self-executing. This point was raised by just over half of third sector organisations (27 respondents) and over a quarter of public bodies (6 respondents). It was also raised by 1 out of 18 individuals, 3 out of 6 academics and 1 out of 2 legal professions/organisations.
“The consultation paper appears to contemplate that Convention”rights” might be incorporated into domestic law but with the courts retaining the option not to enforce them because they are not”self-executing”. It is not understood how this would be consistent with the direct incorporation model. If Parliament enacts a law, the courts will require to enforce it.” (Legal profession/organisation)
Under a fifth of those who provided comments (18 respondents) noted that the courts should be responsible for dealing with the issue of whether particular UNCRC rights are self-executing. With this in mind, it was noted that the courts should have a duty to comply and act compatibly with the UNCRC. Respondents outlined how the courts and law-making institutions are competent to deal with this issue, with a suggestion that courts should develop doctrines to deal with this issue on a case by case basis. A further suggestion was for the courts to provide advice on legislation which would need to be enacted to make a right self-executing. This view was expressed by under a fifth of third sector organisations (9 respondents), just over a tenth of public bodies (3 respondents) and just over a fifth of individuals (4 respondents). It was also raised by 1 out of 6 academics and 1 out of 2 respondents from legal professions/organisations.
“…decisions in this area should be left to the courts to develop doctrines for dealing with this issue on a case by case basis. Courts in Scotland and the wider UK are already used to doing this when considering cases under the Human Rights Act 1998.” (Charity / non-profit organisation)
Under a tenth of those who provided comments (9 respondents) outlined the importance of clarity in order to avoid mis-interpretation of children’s rights. It was suggested that there should be a clear list of rights that impose obligations on public authorities to achieve substantive outcomes or make changes to their processes. These rights should be enforceable by rights-holders. Further support for this view was identified in comments from respondents that legislation should provide clarity as to which UNCRC rights are self-executing. This issue was raised by under a tenth of third sector organisations (5 respondents). It was also raised by 2 out of 18 individuals, 1 out of 21 public bodies and 1 out of 6 academics.
“This should still be stated so everything is crystal clear from the start and mis-interpretation, by accident or design, is minimised.” (Individual)
A few respondents noted that there should be careful scrutiny of each individual right in order to understand if they need further interpretation within domestic law. These respondents recognised that as the terms of the UNCRC are written in order to enable their application across legal, political and cultural context and to allow for local variation and enshrinement in law, they are general and lack detail. Therefore, careful consideration should be taken when determining whether each individual UNCRC right is self-executing. This view was raised by 1 out of 52 third sector organisations, 1 out of 21 public bodies and 1 out of 18 individuals.
“Whether or not particular rights are able to be enforced directly by the courts without the need for additional legislation (i.e. self-executing), careful scrutiny of these individual rights will be required to understand if they need further interpretation or enhancement within domestic law. This would relate not only to the principles of the rights but also to the specifics and intentions behind them. This would be especially pertinent in the case of decision-making for, for example, children with incapacity. This is stated within the PANEL principles for taking a human rights-based approach i.e. ‘[p]eople who face the biggest barriers to realising their rights should be prioritised’.” (Public body)
2.9 Question 9
How could clarity be provided to rights holders and duty bearers under a direct incorporation approach, given the interaction with the Scotland Act 1998?
A total of 117 respondents provided written comments to explain their views. The key views arising in these comments are set out below, in order of frequency.
The most popular view expressed by respondents who commented on this question was that fully accessible guidance should be developed for both rights holders and duty bearers. This view was raised by just under half of those who provided comments (54 respondents). These respondents felt that efforts should be made to ensure this guidance is accessible for all, through developing easy read versions in multiple formats (e.g. braille) to prevent exclusion of certain groups. Guidance for duty bearers should facilitate a clear understanding of the implications of the UNCRC in Scotland. One suggestion was the development of a code of practice for duty bearing organisations. Guidance for duty bearers is particularly important due to the complexity of implementation of UNCRC rights which apply to both reserved and devolved issues. This view was expressed by over two-fifths of third sector organisations (30 respondents), just under three quarters of public bodies (17 respondents) and just under a fifth of individuals (3 respondents). It was also raised by 2 out of 6 academics and 1 out of 3 legal professions/organisations who responded.
“In order to provide clarity to rights holders and empower them to claim their rights, it is imperative that accessible information and guides are available to everyone, including for example in multiple formats (Easy Read, BSL, braille, etc).” (Public body)
“To achieve clarity, it is important that information and guidance be made available for both rights holders and duty bearers that explains the status of individual rights in Scotland and that guidance is understandable, widely available and authoritative.” (Public body)
“Given the complexity of the implementation of how UNCRC rights could apply both in a reserved and a devolved context, it will be important for there to be clear guidance and clarity about the intermediary roles of organisations such as the Scottish Human Rights Commission, the Commission for Children and Young People and Together.” (Public body)
The same proportion – just under half or 54 respondents – felt that awareness-raising activities should be undertaken to ensure a good level of knowledge and understanding amongst both right holders and duty bearers. Suggested awareness-raising activities mentioned by respondents included a national campaign to raise public awareness; the development of learning materials for children, such as an app which details children’s rights; the use of online resources and social media to disseminate information in relation to children’s rights; and incorporating children’s rights within the Curriculum for Excellence, through lessons such as personal and social education (PSE). It was also suggested that human rights organisations should work with Scottish Government to raise awareness of the UNCRC. This work should include a campaign which addresses and targets individual groups including vulnerable groups and each of the protected characteristics to highlight the different aspects of the UNCRC and how the UNCRC can be most relevant to individual groups. It was raised by just over two-thirds of third sector organisations (45 respondents) and a third of public bodies (8 respondents). It was also raised by 1 out of 17 individuals.
“A communications and awareness programme would provide clear information to children and young people on what their rights are and what actions are taking place with regards to the incorporation of UNCRC, key dates, and why it is happening. In essence training and awareness is required at every level from legislation to case law, and policy development to service provision for children and young people, as effective implementation will be contingent upon awareness of children’s rights. This requires an understanding of children and young people as the subject of rights, to be treated with dignity and respect and to exert influence over their own lives.” (Charity / Non-profit organisation
“With additional measures such as rights education and awareness raising we would urge the Scottish Government to ensure there is a targeted effort to engage with potentially vulnerable and/or overlooked groups including children and young people in Armed Forces families.” (Charity / Non-profit organisation)
“A public facing campaign could be launched to make children and young people aware of their rights and what direct incorporation means. Ideally, this would be incorporated into materials that fit into the Curriculum for Excellence, which would allow learners to explore what the legislation means in practice, allowing them to reflect on how it would impact on their lives.” (Children’s Rights organisation)
Just over a third of those who provided comments (42 respondents) outlined the importance of providing training for staff within duty bearing organisations. Respondents suggested that this training should aim to achieve a clear understanding amongst duty bearing organisations in relation to implementing the changes required following incorporation of the UNCRC. A few respondents expressed the view that this training should be made mandatory. This point was raised by just under a half of third sector organisations (30 respondents), over a quarter of public bodies (7 respondents) and just under a quarter of individuals (4 respondents).
“…training and guidance to be provided for all those responsible for UNCRC incorporation into Scots law – especially in relation to the health rights of children and young people. We strongly believe that established organisations should be supported to provide training and guidance, rather than creating new bodies. This should be supported with appropriate long-term funding.” (Charity / Non-profit organisation)
Over a tenth of those who provided comments (17 respondents) suggested independent advocacy or children’s support services would help provide clarity to rights holders under a direct incorporation approach. These services would provide support for children, advising them and assisting them in exercising their rights. Such a service is particularly important in providing support to the most marginalised and excluded groups to help them understand and exercise their rights. This view was expressed by a fifth of third sector organisations (13 respondents) and just over a tenth of public bodies (3 respondents). It was also raised by 1 out of 17 individuals.
“The CSAP highlights that, if we are to continue to raise children’s awareness of their rights, we need to have sustainably-funded specialist services available to them across Scotland in order to comply with their rights and improve their outcomes. Equally, if duty bearers have understanding of children’s rights, they are more likely to look to ensure children’s rights are being upheld.
For instance, Article 39 is children’s right to recovery from abuse, neglect, torture and violence. Yet every local authority area in Scotland does not offer a specialist recovery service for children who have experienced domestic abuse, for example, meaning that many children’s rights might not be upheld. We would urge Scottish Government and local government to consider such provisions urgently and to assess how they will comply in a meaningful and effective way to ensure that the full suite of children’s rights can be met and upheld, particularly for vulnerable children.” (Charity / Non-profit organisation)
A tenth of those who provided comments (12 respondents) expressed the view that public authorities, as duty bearers, are already well equipped with existing knowledge, having already developed a clear understanding of devolved competencies and functions. They would, therefore, require little guidance for a direct incorporation approach, respondents noted. This point was made by over a tenth of third sector organisations (10 respondents). It was also raised by 1 out of 24 public bodies and 1 out of 17 individuals.
“In terms of duty bearers, public authorities have been working in the context of devolution for 20 years and have developed a clear understanding of devolved and reserved competencies and functions over this time. UNCRC incorporation would of course only apply to devolved matters. Public authorities would therefore be well-equipped to apply their existing knowledge and understanding when fulfilling their duties arising from UNCRC incorporation.” (Charity / Non-profit organisation)
In providing comments to this question, several respondents underlined the importance of public participation. More specifically, these respondents outlined the importance of encouraging children’s involvement in the design of information resources for rights holders. They suggested that the involvement of children would help ensure guidance and information resources developed present clear, understandable messages for rights holders. This view was raised just under a tenth of third sector organisations (6).
“…would recommend the involvement of children and young people with the rollout of the changes and from there onwards; enabling the messages to be heard by the right people in ways that makes sense to the audience. The ‘I Witness, the Concluding Observations’ gives some very clear messages outlining this very view with messages including:
“Encourage involvement, working together is the best way to move forward!” – Young Person, Article 12 in Scotland: UNCRC Outcomes Seminar, Glasgow.
“Marginalised groups of young people can be very isolated, help make sure everyone is involved and supported!” – Young Person, Article 12 in Scotland: UNCRC Seminar, Glasgow.” (Charity / Non-profit organisation)
“Clarity can be provided to rights holders and duty bearers through a range of provisions, including a public participation process on implementation, awareness-raising programmes and independent advocacy. Child-friendly guides and resources should be co-developed with children and young people to ensure the information is accessible and relevant to their lives.” (Charity / Non-profit organisation)
2.10 Question 10
Do you think we are right to reject incorporating the UNCRC solely by making specific changes to domestic legislation?
| Option | Total | Percentage |
|---|---|---|
| Yes | 105 | 65% |
| No | 6 | 4% |
| Don’t know | 14 | 9% |
| Not answered | 25 | 15% |
| Not specified | 12 | 7% |
| |
n=162 |
| Option | Total | Percentage |
|---|---|---|
| Yes | 105 | 84% |
| No | 6 | 5% |
| Don’t know | 14 | 11% |
| n=125 |
A total of 112 respondents provided written comments to explain their views. The key views arising in these comments are set out below, in order of frequency.
The most popular view expressed by respondents who commented on this question was that incorporating the UNCRC solely by making specific changes to domestic legislation is problematic because it does not take into account the full suite of rights enshrined in the UNCRC. This view was raised by just under a third of those who provided comments (34 respondents). These respondents explained that this approach is, therefore, too diluted, lacks robustness and thus does not sufficiently protect children’s rights. This view was expressed by just under a third of third sector organisations (20 respondents), just under a third of public bodies (6 respondents) and a third of individuals (6 respondents). It was also raised by 1 out of 7 academics and 1 out of 2 respondents from a legal profession/organisation.
“Yes. Indirect incorporation of the UNCRC may result in a scattered approach to children’s rights and delay implementation, creating a situation where children are not able to claim all of the rights provided for in the Convention.” (Charity / non-profit organisation)
“We agree with Together and CCYPS that a piecemeal approach to incorporating the UNCRC would not be an effective choice. It leaves significant room for gaps in protection, whereas the UNCRC in full is internationally seen as the most comprehensive scheme for upholding children’s rights. Various disparate amendments to existing legislation would also be less accessible to children and young people wishing to find out about their rights than being able to access the UNCRC in full.” (Children’s rights organisation)
“Making specific changes to domestic law would be a huge undertaking. It would limit how rights were incorporated as would have to be done within the confines of the way in which existing legislation worded. It would represent a piecemeal approach. Rights may be overlooked or the effect of specific changes not fully anticipated creating problems at a later stage.” (Public body)
Over a quarter of those who provided comments (31 respondents) were of the view that incorporating the UNCRC solely by making specific changes to domestic legislation is a fragmented, and therefore not sufficiently cohesive, approach. There was a consensus amongst these respondents that direct incorporation would be the most comprehensive approach. This point was raised by a third of third sector organisations (21 respondents), over a tenth of public bodies (3 respondents) and over a fifth of individuals (4 respondents). It was also raised by 3 out of 7 academics.
“Changes can be made piecemeal and in an unco-ordinated manner whereas incorporation is an overarching legal framework governing future development of legislation, policy and practice and acting as an organic entity responding to and being informed by international best practice. Making selective changes to domestic legislation would not be incorporation. Full incorporation would ensure a comprehensive and rigorous programme to bring legislation into line with the UNCRC and ongoing review to ensure continuous improvement.” (Charity / non-profit organisation)
“The UNCRC is meant to be indivisible – if different articles are enacted through separate pieces of legislation then the coherence of the treaty as a whole is lost, and the opportunity to ensure everyone is aware of their rights and their role as duty bearers will be weakened” (Charity / non-profit organisation)
“To effectively and meaningfully incorporate the UNCRC into domestic law, the model for incorporation must create a comprehensive framework which embeds the UNCRC across all levels of government. Making specific changes to domestic legislation would ultimately amount to a fragmented and disjointed approach to incorporation.” (Children’s rights organisation)
Under a fifth of those who provided comments (21 respondents) noted that incorporating the UNCRC solely by making specific changes to domestic legislation is a piecemeal approach, which will not give effect to the UNCRC as a whole. Recognising the importance of protecting children’s rights, these respondents explained that this piecemeal approach will therefore mean children’s rights would not be given the full respect deserved. This point was raised by under a fifth of third sector organisations (11 respondents) and a quarter of public bodies (5 respondents). It was also raised by 2 out of 18 individuals, 2 out of 7 academics and 1 out of 2 legal professions/organisations.
“Children's rights deserve more than a piecemeal approach. The UNCRC is not the only possible framework for full incorporation of children's human rights into law, but Scotland should, one way or another, enact sweeping change in our legal system to ensure children's rights are afforded full respect.” (Individual)
“Making specific changes to domestic law would be a huge undertaking. It would limit how rights were incorporated as would have to be done within the confines of the way in which existing legislation worded. It would represent a piecemeal approach. Rights may be overlooked or the effect of specific changes not fully anticipated creating problems at a later stage.” (Public body)
Under a fifth of those who provided comments (18 respondents) suggested that incorporating the UNCRC solely by making specific changes to domestic legislation may result in gaps in, and inconsistencies between, legislation. Consequently, these respondents were concerned that rights within the UNCRC may be omitted from domestic legislation. This would lead to gaps in the rights children can exercise. This point was raised by under a fifth of third sector organisations (10 respondents) and under a fifth of individuals (3 respondents). It was also raised by 2 out of 20 public bodies and 3 out of 7 academics.
“…making specific and individual changes to domestic legislation would not result in the full protection of children’s rights. It would result in a pick n’ mix approach to incorporation. This piecemeal approach could result in omissions and in inappropriate judgements. Full incorporation takes away the hazards of a patchy approach to children’s human rights.” (Charity / non-profit)
Over one tenth of those who provided comments (15 respondents) suggested that the approach of incorporating the UNCRC solely by making specific changes to domestic legislation lacks clarity. These respondents suggested that this, in turn, could lead to a lack of understanding of children’s rights amongst rights holders and duty bearers. The rights set out in the UNCRC are interrelated and indivisible and therefore direct incorporation would be the most appropriate approach to ensure understanding of children’s rights amongst rights holders and duty bearers. This view was expressed by just under one fifth of third sector organisations (10 respondents). It was also raised by 3 out of 20 public bodies and 1 out of 18 individuals.
“We need to move away from the mixed landscape of legislation in specific areas and make children’s rights more visible and more user-friendly, particularly for the rights holders–children and young people. The new legislation must incorporate the UNCRC as a standalone alone piece of legislation visible to right holders and those applying and interpreting it.” (Legal profession/organisation)
“Children’s Rights should be an easily interpreted international standard we all adhere to. If this was left to different individual domestic legislative arrangements, it would be harder to have clarity and understanding. The UNCRC is meant to be indivisible. If different articles are enacted through separate pieces of legislation, then the coherence of the treaty will be lost and the opportunity to ensure that everyone is aware of their rights and their role as duty bearers will be weakened.” (Public body)
2.11 Question 11
If the transposition model was followed here, how would we best enable people to participate in the time available?
A total of 106 respondents provided written comments in response to this question. The key views arising in these comments are set out below, in order of frequency
The most popular view expressed by respondents who commented on this question was that they disagreed with the transposition model, noting that their preferred model is direct incorporation. This view was raised by just over two-fifths of those who provided comments (43 respondents). It was raised by just under half of third sector organisations (27 respondents), over a quarter of public bodies (6 respondents) and just over a quarter of individuals (5 respondents). It was also raised by 3 out of 5 academics and 2 out of 2 legal professions/organisations.
Just under a fifth of those who provided comments (20 respondents) noted that a consultation exercise would enable public participation. These respondents noted that this consultation exercise should be accessible nationwide and thus several different methods should be used to enable different groups to respond. Suggested consultation methods included online surveys, public events/local events or conferences, the utilisation of social media and a citizen’s panel. This point was raised by just under a fifth of third sector organisations (11 respondents), just under a quarter of public bodies (5 respondents) and under a fifth of individuals (3 respondents). It was also raised by 1 out of 2 legal professions/organisations.
“To engage people effectively and efficiently, the suite of children’s rights would need to be drafted and then clear and specific questions about it should be put out for wide-ranging consultation. The consultation must be made known on a national scale for meaningful engagement, and accessible to all relevant persons and bodies. To be effective, this would be necessarily time-consuming.” (Charity / non-profit organisation)
Linked to the issue raised above, under a fifth of those who provided comments (17 respondents) emphasised the importance of nationwide involvement. These respondents explained that this nationwide involvement can only be achieved by raising awareness and understanding, through the development and dissemination of fully accessible information. It was noted that having access to this information promotes empowerment amongst rights holders. This point was raised by just under a fifth of third sector organisations (11 respondents) and under a fifth of individuals (3). It was also raised by 2 out of 21 public bodies and 1 out of 2 legal professions/organisations.
Just over a tenth of those who provided comments (14 respondents) noted that effective participatory approaches require time, therefore plenty of notice would be required. However, a few of these respondents raised concerns that the timescales are insufficient and unrealistic to enable nationwide participation in an effective manner. This view was expressed by just under a tenth of third sector organisations (5 respondents), a quarter of public bodies (5 respondents) and under a fifth of individuals (3 respondents). It was also raised by 1 out of 5 academics.
“The timescale for this is unrealistic. Community participation requires sufficient time to allow for meaningful engagement otherwise consultation can appear tokenistic and limited in scope.” (Individual)
“…concerned that free, meaningful and active participation by children, young people, families, and duty bearers in relation to a complicated exercise like a transposition model would be difficult to achieve in such a short period of time.” (Public body)
Just over a tenth of those who provided comments (14 respondents) expressed the view that it is important that approaches to encourage participation enable the participation of a broad range of individuals, including vulnerable groups. These respondents noted that the use of a range of different participatory approaches would be necessary to encourage participation of different groups. This point was raised by around a fifth of third sector organisations (11 respondents). It was also raised by 1 out of 21 public bodies and 1 out of 18 individuals.
“A range of participatory options would be needed so as to be inclusive of all strands of Scottish society. Local participation meetings and online options would be required. A focus on the participation of children and young people would be desirable, and those with additional support needs should be provided with effective support to ensure they can participate.” (Charity / non-profit organisation)
“There may be occasions where there are conflicts between different groups of rights holders. For example, the freedom of religion and the freedom of gender identification. The Scottish Government must ensure that all groups are given the opportunity to participate in this process and that implementation is not held up by competing interests.” (Children’s rights organisations)
“Within the context of full and direct incorporation, however, we strongly support the use of mechanisms to ensure that children, young people, carers and broader civic society are meaningfully engaged throughout the process. There is an associated need to promote awareness of and access to independent advocacy for vulnerable and marginalised people and groups, to enable them to contribute to participation and consultation processes and ensure that their voices are heard throughout.” (Charity / non-profit organisation)
A tenth of those who provided comments (10 respondents) outlined that approaches to encourage participation should engage particularly with children and young people. Respondents noted that participatory approaches should proactively reach out to this group to raise awareness and encourage their participation. Examples provided of institutions or individuals who could play an important role in encouraging children’s participation include schools, youth workers and social workers. This point was raised by a tenth of third sector organisations (6 respondents) and just over a tenth of public bodies (3 respondents). It was also raised by 1 out of 18 individuals.
“We need to go and speak to children and young people in their schools and communities. One possible way is to develop questions which can be used by schools, youth workers, social workers etc. This could also be taken forward through the regional collaboratives, with staff from government and local authorities engaging with children in their localities.” (Charity / non-profit organisation)
2.12 Question 12
What is your preferred model for incorporating the UNCRC into domestic law? Please explain your views.
A total of 134 respondents provided written comments in response to this question. The key views arising in these comments are set out below, in order of frequency
Just under two thirds of those who responded identified direct incorporation as their preferred model (82 respondents). This model was preferred by over three quarters of third sector organisations (63 respondents), just under a third of public bodies (7 respondents) and a third of individuals (7 respondents). It was also preferred by 3 out of 7 academics and 1 out of 3 legal professions/organisations.
Respondents who expressed a preference for a direct incorporation model provided further commentary on their rationale for preferring this model.
- Just under a third of respondents (43 respondents) commented that the model proposed by the Incorporation Advisory Group convened by Together and the Children and Young People Commissioner Scotland (reflected in the draft Children’s Rights (Scotland) Bill) is an appropriate model of incorporation. This model is seen by these respondents as being appropriate as it fully and directly incorporates the UNCRC and its Optional Protocols into Scottish domestic law, includes a duty on public authorities to comply with the UNCRC and its Optional Protocols and ensures the UNCRC is accorded high priority in the Scottish domestic legal system, when in conflict with domestic legislation. This view was raised by just under half of third sector organisations (38 respondents). It was also raised by 2 out of 23 public bodies, 1 out of 21 individuals and 2 out of 7 academics.
- Just over a fifth of those who provided comments (29 respondents) asserted that a model of direct incorporation does not preclude the option of going further in strengthening children’s rights. These respondents noted that a model of direct incorporation could be further strengthened through the inclusion of a preventative ‘due regard’ duty, as well as ensuring that other domestic legislation which goes beyond the rights set out in the UNCRC can be maintained. This point was raised by over a quarter of third sector organisations (23 respondents) and over a tenth of public bodies (3 respondents). It was also raised by 3 out of 7 academics.
- Over a tenth of those who provided comments (15 respondents) noted that the rights set out in the UNCRC are interrelated, indivisible, interdependent and universal. It would not be possible to take a selective approach to incorporating the UNCRC articles, as the articles represent rights which should apply to all children equally and together form a comprehensive basis for children’s rights law. This point was raised by just under a fifth of third sector organisations (13 respondents). It was also raised by 2 out of 23 public bodies.
- Over a tenth of those who provided comments (14 respondents) also stated that direct incorporation will avoid a piecemeal approach to embedding the UNCRC in domestic law. These respondents identified a risk that unless the UNCRC is incorporated directly, children’s rights will be diminished, diluted or undermined through omission or re-writing to suit particular domestic contexts or limitations. This view was expressed by over a tenth of third sector organisations (11). It was also raised by 1 out of 21 individuals, 1 out of 7 academics and 1 out of 3 legal professions/organisations.
- A tenth of those who provided comments (13 respondents) noted that direct incorporation is likely to lead to a clear positive impact on children’s wellbeing. These respondents commented that under a direct incorporation model, there is likely to be a greater cultural understanding of children’s rights and children are more likely to enjoy a high level of protection, leading to Scotland being an excellent place for children to live. This point was raised by over a tenth of third sector organisations (12 respondents). It was also raised by 1 out of 7 academics.
- A tenth of those who provided comments (13 respondents) pointed out that direct incorporation will ensure children’s rights in Scotland stay up-to-date with changes in the international children’s rights consensus, as well as staying current with any changes in devolved powers. These respondents commented that a direct incorporation model is a guaranteed way of ensuring that children’s rights in Scotland remain current and in-line with international best practice. This was raised by just under a fifth of third sector organisations (13 respondents).
- Under a tenth of those who provided comments (10 respondents) noted that direct incorporation ensures clarity in the way children’s rights are interpreted. These respondents felt that duty bearers and rights holders will have certainty and clarity about the rights of children as set out in the UNCRC, with limited scope for misinterpretation. This was raised by just over a tenth of third sector organisations (9 respondents). It was also raised by 1 out of 7 academics.
- Under a tenth of those who provided comments (10 respondents) also expressed the view that there are examples of international best practice in implementation which can guide a direct incorporation model. These respondents noted that other states have successfully incorporation the UNCRC using a direct incorporation model, meaning their experienced can guide Scotland’s incorporation approach. Guidance from the General Comments by the UN Committee are also available. This issue was raised by just over a tenth of third sector organisations (10 respondents).
- Just under a tenth of those who provided comments (10 respondents) noted that a direct incorporation model will ensure legal redress is available. These respondents commented that such a model is the most certain way of ensuring children’s rights are enforceable under Scottish domestic law. It was raised by a tenth of third sector organisations (8 respondents). It was also raised by 1 out of 21 individuals and 1 out of 3 legal professions/organisations.
“[We believe] that a suite of Scottish children’s rights rooted in UNCRC is problematic as the decision-making process for agreeing what rights should be included would be long and complex. We fear this could result in a watered-down version of children’s rights. There are also longer-term implications in terms of how this approach would develop and align with international human rights over time. Scotland could lose step with other countries as updates to the UNCRC through General Comments and Observations would not automatically be relevant.” (Children’s rights organisation)
“The rights identified in the UNCRC are inalienable, indivisible, interdependent and interrelated. If Scotland is looking to incorporate children’s human rights, then all of the rights in the UNCRC must be included. Direct incorporation ensures that children’s human rights are not undermined by omission or by rewriting new variations of the articles, which would not be able to be held up against international standards.” (Children’s rights organisation)
Just under a fifth of respondents expressed uncertainty as to the preferred model and/or could see the benefits and challenges associated with the various options (25 respondents). No definitive opinion was expressed by over a tenth of third sector organisations (11 respondents), just over a quarter of public bodies (6 respondents) and a tenth of individuals (5 respondents). No definitive opinion was also expressed by 1 out of 7 academics ad 2 out of 3 legal professions/organisations. Respondents reported that they either did not feel capable to express a preference or reported that they were not in a position to do so. Well under a tenth of respondents (6 respondents) provided commentary on the benefits and challenges associated with different models of incorporation (echoing views raised elsewhere in the analysis of responses to this question) or acknowledged that the model proposed by the Incorporation Advisory Group convened by Together and the Children and Young People Commissioner Scotland could potentially provide an appropriate model.
Just over a tenth of respondents expressed a preference for transposing the UNCRC through a suite of Scottish children’s rights (15 respondents). This model was preferred by over a third of public bodies (8 respondents). It was also preferred by 2 out of 21 individuals, 3 out of 78 third sector organisations and 2 out of 7 academics.
Respondents who expressed a preference for transposing the UNCRC through a suite of Scottish children’s rights provided further commentary on the rationale for their preference. Reasons for preference included: transposing through this model would allow necessary adjustments to complement the existing Scottish legislative and social context; that a suite of rights would create less ambiguity and less room for interpretation than a direct incorporation model; and that it would sit alongside future intentions to develop a Statutory Human Rights Framework for Scotland.
“The preferred model for incorporating the UNCRC into domestic law would be a tailored and evolving but systematic approach to transposition, arising from comprehensive consultation and co-production with a defined suite of Rights for Scotland’s children; anticipating in due course a Statutory Human Rights Framework for Scotland.” (Public body)
Well under a tenth of respondents expressed a preference for transposing the UNCRC through changes to domestic legislation (4 respondents). Respondents reported that the current model of transposition through domestic legislation has worked effectively and has ensured a lack of ambiguity in how UNCRC articles apply to the Scottish policy and practice. This model was preferred by 2 out of 23 public bodies, 1 out of 21 individuals and 1 out of 78 third sector organisations.
Well under a tenth respondents expressed a preference to combine different models (4 respondents). Respondents commented that this approach would both maintain the integrity of the UNCRC as well as specify how the articles would apply in a Scottish context. This model was preferred by 2 out of 21 individuals, 1 out of 78 third sector organisations and 1 out of 7 academics.
Well under a tenth of respondents expressed general opposition to the incorporation of the UNCRC and/or additional children’s rights mechanisms (4 respondents, all individual respondents).
Contact
Email: alexandra.devoy@gov.scot
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