United Nations Convention on the Rights of the Child: consultation analysis

4. Theme 3

The focus of the questions under theme 3 of the consultation was enabling compatibility and remedies.

4.1 Question 17

Do you agree that any legislation to be introduced in the Parliament should be accompanied by a statement of compatibility with children’s rights? 

Option	Total	Percentage
Yes	120	74%
No	5	3%
Don’t know	6	4%
Not answered	17	10%
Not specified	14	9%
		n=162

 

Option	Total	Percentage
Yes	120	92%
No	5	4%
Don’t know	6	5%
		n=131

A total of 117 respondents provided written comments in response to this question. 

There is clear support among consultation respondents for a statement of compatibility with children’s rights to accompany any legislation to be introduced in parliament. The key views arising in these comments are set out below, in order of frequency.

“The proposed requirement to produce a statement of compatibility with children’s rights would appear to be a proportionate response to ensure that the totality of the legislative framework of the Scottish Parliament fully considers children’s rights.” (Public body)

The most popular view set out in written responses to this question was that any statement of compatibility should be intrinsically linked to the introduction of CRWIAs. Over a quarter of those who provided comments (31 respondents) expressed this view. These respondents outlined that this approach would help to ensure that consideration of compatibility with children’s rights is always included from the outset of the legislative process. Linking these two elements would strengthen Parliament’s scrutiny of any Bill’s compliance with UNCRC at all stages and would contribute to mitigating against any negative impacts on children’s rights, reflecting that all aspects of their life can be affected by multiple features of policy and decision making. This view was expressed by just over a third of third sector organisations (24 respondents) and just under a quarter of public bodies (5 respondents). It was also raised by 2 out of 6 academics.

“These measures will ensure that children’s rights are at the heart of legislative reform and they will support the Parliament to scrutinise proposed legislation from a child rights perspective.” (Children’s rights organisation)

Just under a tenth of those who provided comments (13 respondents) considered that a statement of compatibility would deliver enhanced scrutiny and accountability when introducing legislation. They outlined that it would ensure that children’s rights are fully understood during the development of a bill before it is laid before the Parliament for consideration, thereby contributing to identifying any non-compliance issues before any proposed law makes its legislative journey in Parliament. This point was raised by around a sixth of third sector organisations (11 respondents). It was also raised by 1 out of 22 public bodies and 1 out of 17 individuals.

Under a tenth of those who provided comments (8 respondents) believed that a statement would therefore offer the opportunity for legislators to rectify any issues before parliamentary scrutiny picked them up, saving vital parliamentary time and resources. Knowing that this is a requirement was also considered to mean that legislators will design laws to ensure compliance with children’s rights from the outset, which it was hoped can lead to better decisions and law-making. This point was raised by 5 third sector organisations out of 70. It was also raised by 2 out of 17 individuals and 1 out of 22 public bodies.

Over a tenth of respondents who provided comments (14 respondents) noted that a statement was also considered to allow the identification of issues of compatibility at an early stage, thereby mitigating against any negative impacts on children’s rights. As such, a pre-legislative consideration of compatibility with the UNCRC was considered by respondents to be a way of preventing the passage of law which enables infringement of children’s rights. Statements of compatibility were outlined as ‘useful tools’ to formalise the recognition of UNCRC compliance and embed consideration of the UNCRC rights in the law-making process. This issue was raised by almost a fifth of public bodies (4 respondents) and around an eighth of third sector organisations (9 respondents). It was also raised by 1 out of 6 academics.

Under a tenth of all respondents who provided comments (10 respondents), felt that a statement of compatibility must be accompanied by sufficient ‘upstream’ work to ensure that children’s rights are a prime consideration at all stages in the process at a wider policy making level. These respondents outlined that a statement would contribute to promoting awareness of children’s rights among decision makers while also ensuring that children’s rights influence other areas of policy. This issue was raised by over a tenth of third sector organisations (9 respondents). It was also raised by 1 out of 22 public bodies.

“Simply making a statement of compatibility will be inadequate without thorough consideration of all the potential impacts on children’s rights, including those of marginalised groups.” (Charity / non-profit organisation) 

Under a tenth of all respondents who provided comments (9 respondents) also noted that the requirement helps to ensure that Bills which may not initially appear to be relevant to children, are also subject to the same scrutiny where wider implications can be explored. Again, this was considered to potentially contribute to better legislation and ensure that the recognition of children’s rights is a key part of wider policy and decision-making processes. Respondents highlighted that it is important to ensure that children’s rights are considered beyond the children’s sector. For example, transport policy should address travel requirements for families with young children, young people and those with additional needs. It was raised by just under a tenth of third sector organisations (6 respondents) and public bodies (2 respondents). It was also raised by 1 out of 17 individuals.

“This would allow people to know how to incorporate the new legislation into current policies or how to make new ones to ensure the law was adhered to and that this is always addressed in advance at Bill stage.” (Individual)  

“A Statement of Compatibility would enhance and complement existing pre-legislative checks. Such a statement would support and provide information and greater awareness to elected members.” (Charity / non-profit organisation)

A tenth of all respondents (13 respondents) who provided comments on this question provided general expressions of agreement with the Incorporation Advisory Group convened by Together and the Children & Young People's Commissioner Scotland. This view was expressed by over a tenth of third sector organisations (9 respondents) and just under a tenth of public bodies (2 respondents). It was also raised by 2 out of 6 academics.

“We agree with Together that a Statement of Compatibility would play an important role in ensuring that any new legislation introduced in the Parliament is compatible with the UNCRC and that the statement should be accompanied by a CRIA that explicitly sets out how the Bill furthers UNCRC compliance and mitigates against any negative impacts on children’s rights.” (Charity / non-profit organisation).

4.2 Question 18

Do you agree that the Bill should contain a regime which allows right holders to challenge acts of public authorities on the ground that they are incompatible with the rights provided for in the Bill?

Option	Total	Percentage
Yes	131	81%
No	5	3%
Don’t know	6	4%
Not answered	13	8%
Not specified	7	4%
		n=162

 

Option	Total	Percentage
Yes	131	92%
No	5	4%
Don’t know	6	4%
		n=142

A total of 126 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 support for a regime which allows right holders to challenge acts of public authorities. This view was expressed by around a quarter of all respondents who provided comments (32 respondents). It was also by highlighted by respondents that the justiciability of children’s rights is a ‘crucial part of UNCRC implementation’ as well as being a basic tenet of constitutional democracy. Therefore, it was considered vital that children, young people, their parents and carers and representative organisations are all given appropriate opportunity for remedy and redress to challenge public authorities when they believe that children and young people’s rights have been breached. This issue was raised by over a quarter of public bodies (7 respondents) and just under a third of third sector organisations (23 respondents). It was also raised by 1 out of 5 academics and 1 out of 3 legal professions/organisations.

“The ability of rights holders to go to court to vindicate their rights is a basic feature of a constitutional democracy, it helps to guarantee compliance, and provides an authoritative forum for deciding whether or not rights have been complied with.” (Public body)

Around a tenth of all respondents who provided comments (11 respondents) noted that all groups must be able to use, and have confidence in, the legal system. These respondents also felt it was essential that children’s rights are reinforced. Respondents noted that children and young people face additional barriers to accessing justice and therefore public authorities and other organisations should be compelled to remedy issues which are in violation of children’s rights. To make sure this takes place, it is important that sufficient resources are allocated to ensure that children have access to children’s rights officers and advocacy services in all parts of Scotland. This was raised by around an eighth of third sector organisations (10 respondents). It was also raised by 1 out of 17 individuals.

“One of the aims of incorporating international human rights law into domestic legislation is to ensure a human rights-based approach is taken from the beginning (e.g. planning and design stages), thereby ensuring greater compatibility with rights once implementation is underway. However, not all non-rights respecting obstacles will be ‘designed out’ and this is why it is also important to include accountability mechanisms for when infringements do occur.” (Public body)

Under a tenth of all respondents who provided comments (10 respondents) argued for a regime that would provide further means of ensuring the compliance of legislation with children’s rights. These respondents argued that the way in which the UNCRC is incorporated needs to be effective and real and not merely symbolic. This point was raised by a quarter of public bodies (6 responses). It was also raised by 3 out of 76 third sector organisations and 1 out of 3 legal professions/organisations.

“Any right which cannot be demanded directly by the right holder is worthless”. (Individual)

“It is essential that the rights-holders are able to challenge the acts of public bodies if such actions are incompatible with the provisions of the new Bill. It is essential that those individuals are able to have protection of their rights when coming in to contact with public bodies in the looked after, educational or any other settings in both instances of breaches of rights and by acts of omission.” (Legal profession/organisation)

For respondents, clear pathways to remedy and redress that would include a complaints system as well as full legal processes. Rights holders should be able to raise their concerns directly with duty bearers in the first instance without fear of reprisal or repercussions.  Public authorities are required to comply with legislation and therefore rights holders must have the opportunity to challenge their action or inaction in order to prevent or remedy violations of children’s rights. It was considered important to ensure that children (or those acting on their behalf) are able to fully interact with the process of challenging any breach to their rights. 

A small minority of respondents (7 respondents out of 126) noted the particular importance of a regime to support the most vulnerable children. In terms of redress, the consultation does not give a great deal of consideration to ease of access to redress and resource for representation / advocacy for children in taking action. This is crucial, especially for vulnerable children, including looked after children, who may wish to take redress against public bodies who hold corporate parenting responsibilities in general and local authorities in particular, who may hold some parental responsibilities in respect of them. This point was raised by over a tenth of public bodies (4 respondents) and 3 third sector organisations out of 77.

“It is also important that there are sanctions to deal with instances of incompatible actions. Given that we may be dealing with the needs of people who are among the most vulnerable, there must be steps taken to empower them.” (Third sector organisation)

Almost a third of all respondents who provided comments (37 respondents) highlighted the importance of developing child-friendly approaches and clear routes for challenge in order to ensure right holders have the opportunity to recourse. These respondents felt that it is important that a range of child sensitive and child friendly procedures are developed for children and young people and their representatives to ensure accountability and remedy and raise concerns directly with duty bearers. It was noted that it is important these procedures include support for self-advocacy or independent advocacy, victim support services, access to independent child friendly info and complaints procedures and to courts with necessary legal and other assistance as well as info on timescales and right to appeal. This issue was raised by a third of public bodies (8 respondents) and a third of third sector organisations (25 respondents). It was also raised by 2 out of 3 legal professions/organisations, 1 out of 5 academics and 1 out of 17 individuals.

A number of other points were raised by small numbers of respondents. These are not broken down by sub-group in view of the numbers of responses in question.  

A small number of respondents (individuals and public bodies) did not agree with a regime and cited concerns about increased litigation, clarifications regarding the definition of a child and a preference for dialogue before legal processes. Others, though expressing support for a regime, also outlined reservations such as the potential for an increase in the amount of litigation relating to children’s rights rather than an actual improvement in children's rights. Careful implementation and guidance was therefore considered to be required to dovetail this with other rights to challenge along with providing public bodies with time to become compliant through resources to identify and eliminate poor practice. It was also suggested that any regime will need to be formalised and will need to operate consistently across the country. 

“This would be a perfect way to ensure that public bodies are swamped by entirely vexatious challenges.” (Individual) 

“Challenge should be possible, however there should be clear routes for challenging and resolving most rights issues with public authorities at an earlier stage. One possible option would be via nominated rights champions, and consideration of how rights issues are handled within or in addition to existing complaints processes.” (Children’s rights organisation)

Other suggestions were outlined by respondents in order to ensure right holders have easy access to independent advice and support. Suggestions included the Children and Young People’s Commissioner Scotland, the Equality and Human Rights Commission and the Scottish Human Rights Commission as routes to raise concerns. The creation of an independent children’s rights tribunal with availability of legal aid advocacy and representation to facilitate the hearing of complaints and access to remedies was suggested. Young people consulted proposed various ways in which enforcement and redress including: independent committees made up of young people and adults which have powers to hold public authorities to account and community agencies to seek redress if rights have been violated. 

“The Commissioner for Children and Young People in Scotland would be the logical guardian of children’s rights.  He or she would be well placed to identify any violations and take appropriate action to protect the rights of children and to make a challenge on behalf of a child who asserts that their rights have been breached”. (Legal profession/organisation)

4.3 Question 19

Do you agree that the approach to awards of financial compensation should broadly follow the approach taken to just satisfaction damages under the HRA? Please explain why.

Option	Total	Percentage
Yes	73	45%
No	5	3%
Don’t know	31	19%
Not answered	32	20%
Not specified	21	13%
		n=162

 

Option	Total	Percentage
Yes	73	67%
No	5	5%
Don’t know	31	28%
		n=109

A total of 95 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 in response to this question was support for following the proposed approach to be taken to just satisfaction and damages under the HRA

This view was expressed by almost a fifth of all respondents who provided comments (17 respondents). The HRA model of just satisfaction is considered to have demonstrated itself as an effective proven model within the Scottish legal system. Just satisfaction is seen as a cornerstone of international human rights law and the UNCRC itself is noted to enshrine the right to appropriate reparation and it was considered natural to follow this approach. This issue was raised by over a quarter of third sector organisations (14 respondents). It was also raised by 1 out of 2 legal professions/organisations, 1 out of 22 public bodies and 1 out of 13 individuals.

“UNCRC Article 39 enshrines this right, and it therefore follows that if the Scottish Government goes ahead with full incorporation as per its commitment then this would be part of Scots Law and would need to be implemented. Article 39 makes it clear that there should be appropriate reparation, including compensation". (Charity / non-profit organisation)

Around a tenth of all respondents who provided comments on this question (8 respondents) outlined that just satisfaction is a core mechanism for ensuring those whose rights are violated receive satisfactory acknowledgement of such violation. This was linked closely to the purpose of awards of compensation in that the victim should be placed in the same position, as far is as possible, as if the breach of their human rights had not occurred. It was noted therefore, that there should be an acknowledgement of rights violations and a process to redress these through just satisfaction and, where appropriate, financial compensation. This view was expressed by around a tenth of third sector organisations (5 respondents) and public bodies (2 respondents). It was also raised by 1 out of 6 academics.

“The HRA model works satisfactorily.  But we sound a note of caution on the terminology used here.  Damages under the HRA are not meant to be compensatory but to give recognition that a breach has occurred.  The European Court of Human Rights talks of ”just satisfaction” rather than compensation and we strongly recommend that that language be used instead of ”financial compensation” which risks promising to aggrieved parties far more than (we assume) the new legislation is intended to give.” (Academic)

Over a tenth of all respondents who provided comments (11 respondents) noted that this approach should include appropriate means of reparation, including compensation, and, where needed, measures to promote physical and psychological recovery, rehabilitation and reintegration as part of a wider redress approach. These respondents felt that this approach towards wider redress should also be assured alongside a financial compensation model of just satisfaction. This point was raised by a sixth of third sector organisations (8 respondents). It was also raised by 2 out of 13 individuals and 1 out of 22 public bodies.

A tenth of all respondents who provided comments (13 respondents) expressed the view that decisions should be decided on case by case basis and that guidance would be required on levels of compensation awards in relation to 'just satisfaction'. These respondents underlined the need for a fair system that is transparent and treats each case with equal respect. There was interest in other proven models and whether an institution such as the ECHR could provide guidance on levels of award. These issues were raised around a fifth of third sector organisations (9 respondents). It was also raised by 1 out of 13 individuals, 2 out of 22 public bodies and 1 out of 2 legal professions/organisations.

“The approach to awards of financial compensation for just satisfaction damages under the HRA is tried and tested. Decisions made in relation to just satisfaction damages under the HRA should be considered and used as guidance for awards of financial compensation made for breaches of rights in terms of the UNCRC. It may however take time to develop a body of case law on this.” (Legal profession/organisation)

Under a tenth of all respondents who provided comments (8 respondents) noted that care must be taken to ensure a child-centred approach to just satisfaction, protecting the interests of the child above other stakeholders. It was outlined that there needs to be flexibility in the system to accommodate the child's needs, whether simple or complex, that would allow them to seek compensation when their rights have been breached. This point was raised by around a tenth of public bodies (2 respondents). It was also raised by 2 out of 13 individuals and by 4 third sector organisations (out of 51). 

“Financial compensation should be awarded but access to justice should be more straightforward and affordable for all children and young people who wish to seek redress.” (Charity / non-profit organisation)

“Most of the young people we spoke to our consultation sessions felt that where breaches had occurred the most important thing was that support for recovery was available. This is in line with article 39 of the UNCRC – the right to recovery.” (Charity / non-profit organisation)

Respondents outlined that there must be consequences for duty bearers that fail to uphold rights linked to any approaches for just satisfaction for children deprived of their rights. It was considered that this could also provide a deterrent and a motivation for duty bearers to implement children’s rights as far as possible. Respondents suggested that violations of rights should also result in legislation being amended or developed to prevent similar violations in the future and therefore reducing the likelihood of future financial compensation being required. 

“Financial compensation has value, but it is not sufficient. If a legal case proves damages from abuse of rights, redress should go beyond financial compensation, and should include a legal requirement for immediate structural change in the offending institution, monitored by the courts, to address potential further abuse.” (Individual)

Under a tenth of all respondents who provided comments (7 respondents) expressed the view that proportionality was nevertheless felt to be key by respondents to avoid the development of ‘no win, no fee’ litigation. These respondents considered any actions leading to this will do little to protect rights and could potentially have a negative impact on services and practice. In addition to the reputational damage to duty bearers, a significant financial penalty could harm public services for all citizens so it was outlined that a balance needs to be struck. There were suggestions that there should thus be some assessment of the potential cost implications of the potential for increased litigation involving public services and analysis of impact on delivery of support for children and their families. This point was raised by around a fifth of public bodies (4 respondents). It was also raised by 1 out of 13 individuals and 1 out of 50 third sector organisations.

Linked to the above, a view was expressed by a tenth of all respondents who provided comments (10 respondents) that just satisfaction must be proportionate and appropriate and be applied consistently. The approach should recognise, for example, the difficulty in measuring losses accurately when children’s rights are violated or taking into consideration the potential impact on public service delivery. This point was raised by a tenth of third sector organisations (6 respondents). It was also raised by 2 out of 13 individuals and 1 out of 22 public bodies. 

“Children and young people need to feel empowered to challenge breaches of their rights that are protected under the UNCRC, however we cannot allow a culture of speculative legal claims to become prevalent. This would have a negative impact on young people, and the public services that they rely on.” (Children’s rights organisation)

“While financial recompense will rarely be a principal motivation in such cases, it is important nonetheless to fairly reflect the impact that a breach has had on an individual.” (Individual) 

“I am unsure if financial compensation is appropriate other than defined losses as this may lead to adults applying pressure to children for financial gain.” (Individual) 

Among those respondents who responded that they did not know, or did not answer, some felt unable to express a judgement on this particular issue while others expressed a need for further detail and specific proposals on financial compensation before they were able to form an opinion. It was also suggested that alternative approaches should be additionally be fully utilised in first instance including complaints processes and Duty of Candour.  

4.4 Question 20

Do you agree that the UNCRC rights should take precedence over provisions in secondary legislation as is the case under the HRA for ECHR rights? Are there any potential difficulties with this that you can see?

Option	Total	Percentage
Yes	89	55%
No	6	4%
Don’t know	18	11%
Not answered	30	19%
Not specified	19	12%
		n=162

 

Option	Total	Percentage
Yes	89	79%
No	6	5%
Don’t know	18	16%
		n=113

A total of 98 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 UNCRC rights should take precedence over provisions in secondary legislation because it is essential to maintain consistency with the approach to wider human rights set out in the HRA. This view was expressed by just over a quarter of those who provided comments (25 respondents). These respondents noted that in order for the UNCRC to have the same legal status as the ECHR, it is necessary to ensure that UNCRC rights are given precedence over provisions in secondary legislation, rather than being allocated a lower status that human rights are as provided for in the ECHR. It was raised by just over a quarter of third sector organisations (14 respondents) and two-fifths of public bodies (8 respondents). It was also raised by 1 out of 14 individuals, 1 out of 6 academics and 1 out of 3 legal professions/organisations. 

Just under a quarter of those who provided comments (22 respondents) felt that ensuring UNCRC rights take precedence over provisions in secondary legislation provides clear constitutional commitment to children’s rights and ‘full force’ to the UNCRC rights. It is likely this approach would ensure the UNCRC rights have a positive impact on policy and decision-making, according to comments from these consultation respondents. Respondents commented that giving UNCRC rights precedence over provisions in secondary legislation will ensure incorporation is more than ‘symbolic’ and that such precedence will provide the strongest defence of children’s rights. This issue was raised by just under a third of third sector organisations (16 respondents). It was also raised by 1 out of 20 public bodies, 2 out of 14 individuals and 3 out of 6 academics. 

“Constitutionalisation of the UNCRC would evidence a commitment to recognition of children’s rights at the highest level. Interviewees in a…study on incorporation of the UNCRC suggested that ”the constitutional commitment to children’s rights created a symbolic ‘red line’ that could not be crossed”. We believe that giving children’s fundamental rights precedence over secondary legislation will give them the strongest protection possible.” (Charity / non-profit organisation)

Over a fifth of those who provided comments (21 respondents) felt that a secondary legislation should be compatible with UNCRC rights. Compatibility would be ensured through a thorough review of existing secondary legislation and/or ensuring new secondary legislation is compatible. These respondents acknowledge this would be an important but challenging task which would involve in-depth consideration of the extent to which domestic legislation already complies with (or goes further than) UNCRC provisions. On occasion, respondents commented that much secondary legislation should already be compatible with UNCRC provisions, as Scottish duty bearers and courts already give due consideration to the UNCRC. This view was expressed by over a tenth of third sector organisations (9 respondents) and two-fifths of public bodies (8 respondents). It was also raised by 1 out of 14 individuals, 1 out of 6 academics and 1 out of 3 legal professions/organisations.

“The Scottish Government already uses UNCRC as a framework to ensure consideration is given to children’s rights where decisions are made on policy matters and as an underpinning principle of the Getting It Right for Every Child (GIRFEC) model. Part 1 of the Children and Young People (Scotland) Act 2014 places obligations on public authorities to report every three years on the steps which they have taken to secure or give further effect to UNCRC.  In developing any framework for incorporation, the extent to which domestic law is already consistent with, or exceeds the requirements of UNCRC will require to be considered.” (Legal profession/organisation)  

Just under a fifth of those who provided comments (17 respondents) felt that learning from other states which have incorporated the UNCRC suggests that this approach has a clear positive impact on policy and decision-making. These respondents comment that international evidence suggests that providing UNCRC rights with an elevated status in domestic legal hierarchy has a positive impact on societal awareness and understanding of children’s rights, as well as a positive impact on how children experience their rights in practice. On occasion, respondents identify particular states which are deemed to have successfully allocated precedence to UNCRC rights over secondary legislation, such as Norway. This point was raised by a quarter of third sector organisations (13 respondents). It was also raised by 2 out of 20 public bodies and 2 out of 6 academics. 

“The visibility of the UNCRC in domestic law promotes and strengthens understanding of children as rights holders, which is essential for UNCRC rights to have meaning and be effectively implemented in practice. The Norwegian model of incorporation sets out that the UNCRC has precedence over other legislation and prevails over domestic law in the case of a conflict (alongside the ECHR). Norway is seen as a successful model of incorporation that has had a significant impact on the realisation of children’s rights. This has included improved awareness and understanding of the UNCRC, evidenced by a significant increase in the number of references to the UNCRC in Supreme Court cases after incorporation. The UNCRC also has precedence in Spain and Belgium.” (Children’s rights organisation)

Just over a tenth of those who provided comments (13 respondents) expressed that the UNCRC encompasses fundamental, inalienable rights which should, by their nature, take precedence over provisions in secondary legislation. It was noted that the UNCRC, like the ECHR, comprises rights which, once incorporated, will be a strong legal foundation for children’s rights; the UNCRC rights would act as a foundation for all other secondary legislation in this case. Respondents commented that the rights should be central to how domestic legislation should be developed and interpreted. This point was raised by over a tenth of third sector organisations (8 respondents) and a fifth of public bodies (4 respondents). It was also raised by 1 out of 14 individuals.

“The rights outlined in the UNCRC are not aspirational but inalienable and therefore should be considered as preeminent.” (Children’s rights organisation)

Around a tenth of those who provided comments (12 respondents) expressed that ensuring precedence for UNCRC rights is in-line with the UN Committee’s standpoint that incorporation should mean that the provisions of the UNCRC prevail where there is a conflict with domestic legislation or common practice. These respondents generally do not provide substantive commentary to support this view, but simply note that the proposal to give UNCRC rights precedence over provisions in secondary legislation is in-line with the international consensus as represented by the UN Committee’s standpoint. This issue was raised by just under a fifth of third sector organisations (10 respondents). It was also raised by 2 out of 6 academics. 

A tenth of those who provided comments (10 respondents) noted that the children’s best interests should always be prioritised, regardless of any contradiction between the UNCRC rights and provisions in secondary legislation. Respondents commented that, although it may seem reasonable to give UNCRC rights precedence over provisions in secondary legislation, it may prove challenging to interpret whether provisions within secondary legislation are actually in the best interest of the child, as noted in the text of Article 3. Care must be taken to ensuring that any provisions which are overridden by the UNCRC rights are not themselves central to the protection of a child’s wellbeing or their parents’ rights. This view was expressed by under a tenth of third sector organisations (3 respondents) and a fifth of public bodies (4 respondents). It was also raised by 2 out of 14 individuals and 1 out of 3 legal professions/organisations.

“In general, as a matter of principle this is consistent, and if there are specific elements of subordinate legislation that can be challenged on UNCRC grounds then there should be a mechanism for review. However, there could be a difficulty if some provision in secondary legislation is key within specific processes to the delivery of safety and best interests of a child or children involved.” (Public body)

Just under a tenth of those who provided comments (9 respondents) noted that provisions in secondary legislation should be given precedence over UNCRC rights when these provisions represent a stronger defence of children’s rights. This is in-line with Article 41 of the UNCRC which emphasises that the Convention does not affect other domestic legislative provisions which are more conducive to the realization of the rights of the child.^[5] Respondents noted that the UNCRC comprises fundamental rights for children but this does not preclude states from going further in legislating or interpreting legislation in a way which ensured additional or strengthened children’s rights. No incompatibility is therefore considered to exist between the UNCRC and provisions in secondary legislation which go beyond UNCRC provisions. This view was expressed by just under a tenth of third sector organisations (5 respondents) and over a tenth of public bodies (3 respondents). It was also raised by 1 out of 3 legal professions/organisations.

“Because the UNCRC is widely seen as the ”floor and not the ceiling” where children’s rights are concerned, [we believe] it should take precedence over secondary legislation, provided secondary legislation does not call for a higher level of rights. If secondary legislation calls for a higher level of rights it would have to be considered. Our understanding is that this is in line with how the Scottish Government regards the ECHR in relation to the HRA.” (Public body)

Among those who didn’t agree that UNCRC rights should be given precedence over provisions in secondary legislation, or could not express a particular view, comments (each raised by under a tenth of all respondents who provided comments in response to this question) were as follows:

• A few respondents noted that further discussion is needed about how such a precedence would be interpreted and implemented in practice (4 respondents), as well as additional guidance for public authorities judging incompatibility between the UNCRC rights and secondary legislation (3 respondents).
• Several noted that the rights and responsibilities of parents should be taken into account (5 respondents).
• Several respondents also reported they are unable to provide a response (7 respondents). 

4.5 Question 21

Do you agree that the Bill should contain strong provisions requiring an ASP to be interpreted and applied so far as possible in a manner which is compatible with the rights provided for in the Bill?

Option	Total	Percentage
Yes	82	51%
No	3	2%
Don’t know	20	12%
Not answered	34	21%
Not specified	23	14%
		n=162

 

Option	Total	Percentage
Yes	82	78%
No	3	3%
Don’t know	20	19%
		n=105

A total of 74 respondents provided written comments to explain their views. 

The most popular view expressed by those who commented on this question was that including such provisions would ensure the UNCRC incorporation Bill is consistent with the HRA and the Scotland Act. This view was expressed by just under a third of those who provided comments (23 respondents). These respondents commented that the proposed provisions requiring an ASP to be interpreted and applied so far as possible in a manner compatible with UNCRC rights has legal precedent, in the provisions of the HRA and Scotland Act in relation to the ECHR. Courts are therefore familiar with such provisions and UNCRC rights should have the same legal status as rights enshrined in the ECHR. The limitations associated with devolved responsibility do not preclude provisions requiring an ASP (rather than Acts of UK Parliament) to be interpreted and applied compatibly. This view was expressed by just under a third of third sector organisations (13 respondents) and a quarter of public bodies (4 respondents). It was also raised by 1 out of 9 individuals, 4 out of 4 academics and 1 out of 2 legal professions/organisations. 

“This is an important aspect of the HRA model. Section 3 of the HRA provides that, if upon reading the ordinary construction of primary or subordinate legislation it is incompatible with the ECHR, then”a possible meaning must be found that will prevent the need for a declaration of incompatibility." (R (Wardle) v Crown Court at Leeds [2001] UKHL 12, at para 79). The object of section 3 is to avoid wherever possible an action by a public authority which be unlawful under section 6 of the HRA.  This is a positive judicial mechanism.” (Children’s rights organisation)

About a quarter of those who provided comments (18 respondents) noted that such provisions would ensure the best outcomes for children and the strongest defence of the rights enshrined in the UNCRC. These respondents commented that children will have better opportunities to exercise their rights if ASPs are interpreted compatibly with children’s rights from the beginning. Interpreting and applying ASPs compatibly will secure children’s rights further and allow enforcement, ensuring that any incompatibility in legislation will actually be addressed or justified effectively through the courts. This point was raised by over a quarter of third sector organisations (13 respondents) and just under a third of public bodies (5 respondents). 

“We agree with this approach as it minimises the risk that the legislation will be found incompatible with the UNCRC rights. This also provides the ability to correct any incompatibility between the legislation and the UNCRC rights.” (Charity / non-profit organisation)

Just over a fifth of those who provided comments (15 respondents) re-iterated that provisions should be included in the model of UNCRC incorporation to ensure courts read and give effect to primary and subordinate legislation of the Scottish Parliament in a way which is compatible with the UNCRC. These respondents confirmed that interpreting and applying an ASP compatibly should be included in the Bill, presented as a requirement to ‘read and give effect’ to the ASP in a manner which is compatible with the rights provided for in the Bill. On occasion, respondents reference the views of Incorporation Advisory Group convened by Together and the Children and Young People's Commissioner Scotland to support their response. This issue was raised by just over a quarter of third sector organisations (11 respondents). It was also raised by 2 out of 16 public bodies and 2 out of 4 academics.

Under a tenth of all respondents who provided comments in response to this question (6 respondents) expressed general agreement that the Bill should contain strong provisions requiring an ASP to be interpreted and applied so far as possible in a manner which is compatible with the rights provided for in the Bill. These respondents did not provide additional commentary. Broad agreement was noted by just over a tenth of third sector organisations (3 respondents). It was also raised by 2 out of 16 public bodies and 1 out of 9 individuals.  

Less than a tenth of all respondents who provided comments in response to this question (5 respondents) commented that such provisions are completely necessary for the correct and effective incorporation of the UNCRC. These provisions are necessary for the incorporation of the UNCRC to be meaningful. This was raised by less than a tenth of third sector organisations (3 respondents). It was also raised by 1 out of 9 individuals and 1 out of 2 legal professions/organisations. 

4.6 Question 22

Should the Bill contain a regime which would enable rulings to be obtained from the courts on the question of whether a provision in an ASP is incompatible with the rights secured in the Bill?   

Option	Total	Percentage
Yes	91	56%
No	9	6%
Don’t know	0	0%
Not answered	43	27%
Not specified	19	12%
		n=162

 

Option	Total	Percentage
Yes	91	91%
No	9	9%
Don’t know	0	0%
		n=100

A total of 82 respondents provided written comments to explain their views. The key themes arising in these comments are set out below, in order of frequency. 

Among the issues raised by those who answered ‘Yes’ were: 

The most popular view expressed in response to this question was the need to include ‘strike down’ powers within the model of incorporation. This would have the effect that any law passed by the Scottish Parliament would no longer be considered a law if it was decided by a court that it breached the rights set out in the UNCRC. This was raised by around a third of all respondents who provided comments in response to this question (25 respondents). The Children’s Rights (Scotland) Bill, as drafted by the Incorporation Advisory Group convened by Together and the Children and Young People's Commissioner Scotland, includes ‘strike down’ powers that would allow courts to declare an ASP to be incompatible with the UNCRC and the Optional Protocols. This mirrors the protections given to ECHR rights under the Scotland Act 1998 and would ensure that the rights enshrined in the UNCRC are given the same status as that given to ECHR rights through the Scotland Act 1998. 

Linked to the above, there was frequent reference to the consultation’s affirmation that it would not be possible to introduce ‘strike down’ powers without modification to the Scotland Act 1998. The consultation document indicated that granting such a power to the Scottish courts is beyond the competence of the Scottish Parliament. This was questioned repeatedly by respondents who challenged the Scottish Government to provide further details and an explanation for this. If this does prove to the be the case, respondents noted that provisions should be made to enable Scottish courts to issue ‘statements of incompatibility’, which were seen as being a ‘weaker alternative’ because in this case incompatible provisions in legislation remain in law until the UK Parliament amends them.  

“This consultation suggests that granting such a power to the Scottish courts is outwith the competence of the Scottish Parliament. It isn’t clear what is the basis for this determination. We would argue that it is essential that UNCRC rights are valued as fundamental and not optional. This would best be achieved through the ‘strike down’ power discussed above. However, it is essential regardless of whether a strike down within competence, that there is a mechanism for the Courts to examine compatibility of Acts with UNCRC rights.” (Children’s Rights organisation)

The issues noted above were raised by four in ten third sector organisations (20 respondents). It was also raised by 3 in 5 academics and 2 out of 16 public bodies. 

Over a quarter of those who provided comments (22 respondents) noted the Bill should provide a regime which enables rulings to be made on incompatibility in order to ensure that children’s rights are not weakened or violated.  These respondents argued that this would strengthen the protection of children’s rights, acting as a ‘failsafe’ and demonstrating to children and young people ‘that their rights are paramount’. Respondents noted that this approach has been tried and tested through the Scotland Act 1998, which had helped ensure a preventative approach to safeguarding rights and create a human rights culture in Scotland. This point was raised by just under a third of third sector organisations (16 respondents) and a quarter of public bodies (4 respondents). It was also raised by 2 out of 7 individuals. 

“Yes. This mechanism would allow for the courts to highlight to the Parliament that there is an issue that needs to be remedied. It would also allow for preventative action to be taken to ensure that children’s rights are not violated. (Legal profession/organisation)

Under a quarter of those who provided comments (19 respondents) felt that courts should have the power to rule that legislation is unlawful or incompatible with the UNCRC. Courts are uniquely placed to be able to deliver rulings objectively. These respondents noted that the system of incorporation should have appropriate ‘checks and balances’ and that the power to declare ASPs incompatible should fall within the jurisdiction of the Courts. This view was expressed by just under a third of third sector organisations (16 respondents). It was also raised by 1 out of 16 public bodies, 1 out of 5 academics and 1 out of 3 legal professions/organisations.

“Yes. This mechanism would allow for the courts to highlight to the Parliament that there is an issue that needs to be remedied. It would also allow for preventative action to be taken to ensure that children’s rights are not violated.” (Legal profession/organisation)

“The court of law should be the ultimate place where decision making should rest as it can take account of the full set of circumstances in each individual instance.” (Academic respondent)

Those who answered ‘no’ provided very few substantive comments to support their response. 

4.7 Question 23

Do you consider any special test for standing to bring a case under the Bill should be required? Please explain why.

Option	Total	Percentage
Yes	24	15%
No	64	40%
Don’t know	23	14%
Not answered	37	23%
Not specified	14	9%
		n=162

 

Option	Total	Percentage
Yes	24	22%
No	64	58%
Don’t know	23	21%
		n=111

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. 

There was overlap in the views and issues raised by respondents who answered ‘yes’, ‘no’ and ‘don’t know’ to this question. On occasion, respondents who answered ‘yes’ and ‘no’ provided similar or related reasons for their answers. Views raised frequently across the consultation responses are set out below.  

The most popular view expressed by respondents who commented on this question was that the ‘sufficient interest’ test of standing should be applied for those wishing to bring a case under the Bill.  This view was expressed by just over two-fifths of those who provided comments (44 respondents). These respondents suggested that there is a need for a broader definition of standing than that used in the HRA, which requires an individual to be a ‘victim’ of a violation of rights. Within this group of respondents, a few argued that the concept of ‘sufficient interest’ set out following the case of AXA should be given effect.^[6] This would ensure that individuals (including children and young people) wishing to bring a case do not have to demonstrate personal interest or rely on being a victim to bring a case. This is seen by these respondents as being significant given the potential burden on the victim of bringing such a case, and the timeframe for justice systems. This point was raised by just over half of third sector organisations (33 respondents) and just under a third of public bodies (6 respondents). It was also raised by 2 out of 10 individuals and 2 out of 6 academics.

“We consider that the definition of standing should include the following: a child whose rights have been breached, those holding parental responsibilities and rights in respect of the child, those who can satisfy the test of”sufficient interest” in the child as per provisions and interpretation of such test under section 11 of the Children (Scotland) Act 1995, the Commissioner for Children and Young People in Scotland and the Scottish Human Rights Commission.” (Legal profession/organisation)

Over a quarter of those who provided comments (30 respondents) suggested that provision should be made to enable third party representatives to bring cases or contribute to judicial proceedings relating to children’s rights. There were repeated references in consultation responses to ensuring that the Children and Young People’s Commissioner Scotland is able to bring challenges before the courts similar to the way in which the Equalities and Human Rights Commission can.  

“In child cases it is not desirable to wait for a child victim before a challenge can be brought by, or on behalf of, that child. There should be provisions to allow the Commissioner to bring challenges in advance of any harmful effect of legislation.” (Legal profession/organisation) 

Respondents also noted that automatic standing should be given to the Children and Young People’s Commissioner Scotland, the Scottish Human Rights Commissioner and the Equalities and Human Rights Commission. 

“Law Officers should be able to participate in and to initiate proceedings. Consideration should also be given to a range of advocates and representatives, such as - but not limited to - Children and Young People’s Commissioner Scotland, a representative organisation or charity, a trusted professional etc.” (Charity / non-profit organisation)

This issue was raised by just over a third of third sector organisations (22). It was also raised by 2 out of 19 public bodies, 2 out of 10 individuals, 2 out of 6 academics and 2 out of 2 legal professions/organisations.

Just under a quarter of those who provided comments (23 respondents) felt that there should be no special test for standing and that children and young people should be enabled to bring a case or seek redress through the courts. The model of incorporating the UNCRC should include provisions that enable children and young people to bring a case if and when a public authority fails to comply with the UNCRC or its Optional Protocols. Respondents also noted that children with the capacity to instruct a solicitor or other representative should be able to bring a case. Also, respondents noted that there should be provisions to enable collective action (by groups of children of young people or children in association with other representative organisations) to challenge breaches to their rights as a means to reduce burdens on any one child. This view was expressed by just over a quarter of third sector organisations (17 respondents). It was also raised by 2 out of 19 public bodies, 1 out of 10 individuals and 3 out of 6 academics.

“Full incorporation of the UNCRC means that children are protected under domestic law and are therefore able to take a case in their own name. Under Scots law, children have legal capacity at age 16 and are presumed to be able to instruct a solicitor over the age of 12.” (Children’s rights organisation) 

Over a fifth of those who provided comments (22 respondents) emphasised the need to minimise the barriers for children and young people in bringing proceedings to protect their rights. Therefore no special test should be applied which may present barriers or discourage cases from being brought.  Respondents noted that it can be particularly challenging for children and young people to bring a case before the court and their voices are frequently not heard in court proceedings concerning them; as such numerous respondents expressed clear opposition to the introduction of any special test which may make this more difficult. However it also important to recognise that children and young people may need and want guidance, support and representation to engage in legal proceedings. This point was raised by a quarter of third sector organisations (16 respondents) and a little under a fifth of public bodies (3 respondents). It was also raised by 3 out of 6 academics. 

“[We] believe support and guidance must to offered to children to assist them in deciding if bringing a case is the most appropriate course for action. That is why we support the measures proposed in the draft Children’s Rights (Scotland) Bill. The Bill seeks to create early protections in the decision making process, and ensuring that legal standing is provided for the child who is directly subject to an adverse effect of legislation and to those ‘with sufficient interest in the subject matter of the proceedings’.”  (Children’s rights organisation)