United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill: CRWIA

CRWIA – Stage 3 - Publication Template

CRWIA for legislation

CRWIA title: United Nations Convention on The Rights of The Child (incorporation) (scotland) Bill

Date of publication: 01/09/2020

Executive summary

This draft document is an initial assessment of the impact of incorporating the United Nations Convention on the Rights of the Child into Scots Law and Scottish Government will continue to review and update this document where required during the parliamentary process. Any future iterations will reflect an increased understanding of these impacts as the amount of data and research available continues to grow.

This impact assessment should be read in conjunction with the Equality Impact and Fairer Scotland Impact Assessment.

UNICEF, in The UN Convention on the Rights of the Child: a study of legal implementation in 12 countries^[6] found that, “CRC incorporation in and of itself is significant. The very process of incorporation raises awareness of children’s rights and the CRC in government and civil society. In countries where there has been incorporation (Belgium, Norway, Spain), interviewees felt that children were more likely to be perceived as rights holders and that there was a culture of respect for children’s rights. Whilst incorporation provided opportunities for strategic litigation given that the CRC was part of the domestic legal system, its main value was thought to be in the strong message it conveyed about the status of children and children’s rights, and the knock-on effects for implementation of children’s rights principles into domestic law and policy”.

The UNCRC Bill will ensure that children’s rights are protected, respected and fulfilled in Scotland to the maximum extent of the Scottish Parliament’s powers. The Bill will ensure that there is a proactive culture of everyday accountability for children’s rights across public services in Scotland. It will ensure that public authorities are required to take proactive steps to ensure compliance with children’s rights in their decision-making and service delivery. This will mean that the structures within which decisions are made in Scotland must enable children and young people to be heard and take an active role in their own lives and communities.

The Bill will mean that children, young people and their families will experience public authorities consistently acting to uphold the rights of all children in Scotland. Public authorities, including the Scottish Ministers, will be legally obliged to respect children’s rights and rights-holders will be able to challenge public authorities in the courts for breaches of their rights.

Children and young people face additional barriers to realising their rights and accessing justice. In recognition of this, specific measures are provided for in the Bill which remove barriers and build in greater accountability and transparency in relation to the proactive realisation of children’s rights in practice. These provisions include giving power to the Commissioner for Children and Young People in Scotland

to raise claims in the public interest and provision requiring the Scottish Ministers to make a Children’s Rights Scheme.

In summary, the CRWIA shows that incorporation of the UNCRC into Scots law will have a significantly positive impact on ensuring that children’s rights are respected, protected and fulfilled in Scotland, and will contribute to the wellbeing of children in Scotland.

This impact assessment should be read in conjunction with the Equality Impact and Fairer Scotland Impact Assessment.

Background

On the 20^th November 2019, on the 30^th Anniversary of the United Nations Convention on the Rights of the Child (UNCRC), the Deputy First Minister, John Swinney, announced that the Scottish Government would seek to incorporate the UNCRC into Scots law to the maximum extent possible within the powers of the Scottish Parliament.

The Scottish Government is committed to fully realising the human rights of all people in Scotland. It is committed to building a Scotland where respect for human rights forms the bedrock of society and the institutions which govern and deliver public services for the people of Scotland. The United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill represents a significant step on the road to fully realising that future for Scotland: a future based on tolerance, equality, shared values and respect for the worth and human dignity of all people.

The Scottish Government is committed to a revolution in children’s rights. The dual impacts of the Covid-19 pandemic and EU exit underline the importance of human rights being built into the fabric of society. Nowhere is this more important than in relation to children and young people, whose futures depend on the action taken by all public authorities to implement their rights in practice. The Bill will deliver a fundamental shift in the way children’s rights are respected, protected and fulfilled in Scotland, ensuring that children’s rights are built into the fabric of decision-making in Scotland and that these rights can be enforced in the courts.

Delivering the rights of children and young people, as enshrined in the UNCRC, is fundamental to making children’s rights real and Scotland the best place in the world to grow up. One of the most fundamental tests of success in respecting, protecting and fulfilling those rights is whether they are part of the day-to-day lived experience of every child and young person in Scotland. The Scottish Government believes that the Bill will be a catalyst for change in all aspects of public life, supporting full and consistent realisation of all children’s rights in practice.

Scope of the CRWIA, identifying the children and young people affected by the policy, and summarising the evidence base

The provisions within this Bill will affect all children and young people below the age of 18 living in Scotland.

The Bill will also ensure that children can access rights that will be of particular importance to their situations, such as care experienced children and young people (article 9 - Separation from parents, article 18 - Parental responsibilities and state assistance, article 19 - Protection from all forms of violence, article 20 - Children deprived of a family) and those with additional support needs or disabilities (article 23 - Children with disabilities).

International evidence suggests that in a number of countries incorporation has had a positive impact in providing a platform for the development of other legal and non-legislative measures, underpinned by systematic children’s rights training and a robust infrastructure designed to monitor, support and enforce implementation of children’s rights.

Children and young people’s views and experiences

A stand-alone analysis based on responses to the public consultation by respondents identified by the Scottish Government as being organisations that represent the views of children and young people highlighted strong support for full and direct incorporation of the UNCRC. This was also apparent in the 7 events held for children and young people during the public consultation.

Key Findings, including an assessment of the impact on children’s rights, and how the measure will contribute to children’s wellbeing

Children’s rights and their wellbeing are mutually reinforcing. Incorporating the rights in the UNCRC will further support the work which public authorities already do to support children’s wellbeing, and underpin effective and joined up decision-making in relation rights and wellbeing for children and young people.

The Scottish Government has given careful consideration to the views expressed through the “Children’s Rights: Consultation on incorporating the United Nations Convention on the Rights of the Child into our domestic law in Scotland” and engagement in developing the policy for the Bill. Having listened carefully, the Scottish Government is committed to a ‘maximalist’ approach and has sought to deliver on all of the major themes from the consultation in the provisions included in the Bill, including that the UNCRC should be incorporated fully and directly as far as is possible within legislative competence, placing a compatibility duty on public authorities, making provision for compatibility of legislation, ensuring that all children (being all persons below the age of 18) are entitled to the rights, ensuring that rights are enforceable in the courts and that there are effective remedies, requiring that the Scottish Ministers publish a Children’s Rights Scheme and that listed public authorities continue to be required to report.

Monitoring and review

The Bill will require Scottish Ministers to make a Children’s Rights Scheme setting out their arrangements to fulfil its compatibility duty. The Scheme must be laid before the Scottish Parliament. The Bill requires consultation in relation to making the Scheme and requires that an updated scheme is published and laid annually alongside the Scottish Government’s report on the previous year and plans for the year ahead. The provisions in relation to the Children’s Rights Scheme will ensure that Scottish Ministers are not only accountable for their actions in relation to the compatibility duty under the Bill, but that they are accountable for planning and reporting how they will fulfil the rights and obligations under the Bill in practice.

In addition, the CRWIA for this Bill will be reviewed and updated as required.

CRWIA Declaration

Authorisation

Policy/CRWIA lead

Ceri Hunter
Senior Policy Advisor – Children and Young People’s Participation
Creating Positive Futures

Date 01/09/20

Deputy Director or equivalent

Mairi Macpherson
Deputy Director,
Creating Positive Futures

Date 01/09/20