Publication - Progress report

Incorporating the United Nations Convention on the Rights of the Child into Domestic Law in Scotland Working Group: summary report

Published: 27 Jul 2020

This is the summary report of discussions of the Incorporating the United Nations Convention on the Rights of the Child into Domestic Law in Scotland Working Group.

93 page PDF

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93 page PDF

964.0 kB

Contents
Incorporating the United Nations Convention on the Rights of the Child into Domestic Law in Scotland Working Group: summary report
Footnotes

93 page PDF

964.0 kB

Footnotes

1 https://www.gov.scot/groups/childrens-rights-working-group/

2 https://www.gov.scot/publications/childrens-rights-consultation-incorporating-uncrc-rights-child-domestic-law-scotland/

3 https://www.cypcs.org.uk/ufiles/Children's-Rights-Scotland-Bill.pdf

4 http://www.legislation.gov.uk/ukpga/1998/46/schedule/5/part/III.

5 https://www.gov.scot/publications/progressing-human-rights-children-scotland-action-plan-2018-2021/

6 https://www.gov.scot/publications/common-core-skills-knowledge-understanding-values-childrens-workforce-scotland/

7 http://help.elearning.ext.coe.int/

8 https://www.ohchr.org/EN/Issues/Education/Training/Pages/Programme.aspx

9 http://www.legislation.gov.uk/mwa/2011/2/contents.

10 The preamble to the UNCRC states “Recognising that the child for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding”. The National Performance Framework can be accessed at: https://nationalperformance.gov.scot/national-outcomes.

11 Section 29 and Schedule 5 Scotland Act 1998

12 See Sewell Convention, Scotland Act 2016 s 2

13 See Northern Ireland Act 1998, s.6(1)(c) (legislative competence); s.24(1)(c) (Ministerial competence); s.83 (interpretation of Acts of the Assembly)

14 See Government of Wales Act s.81(1) (Ministerial competence); s.94(6)(c) (legislative competence); s.154 (interpretation of Acts of the Assembly)

15 Schedule 5 para.7(1)-(2) Scotland Act 1998 implementation of international obligations is an exception to the reservation of ‘Foreign Affairs’ to Westminster.

16 Lord Brodie in Whaley & Anor v. Lord Advocate [2003] ScotCS 178 (20 June 2003) para.44

17 Lord Hodge, Moohan & Anor v The Lord Advocate [2014] UKSC 67 (17 December 2014), para.30

18 International treaties do not form part of the law of Scotland unless they are incorporated into domestic law through legislation – this was confirmed by Lord Brodie in Whaley & Anor v. Lord Advocate [2003] ScotCS 178 (20 June 2003) para.44.

19 Katie Boyle and Edel Hughes, Identifying Routes to Remedy for Violations of Economic, Social and Cultural Rights, (2018) International Journal of Human Rights Vol 22. 43-69. See also Rosalynd Higgins, Problems and Process: International Law and How We Use It (Oxford University Press, 1994)

20 Kasey McCall-Smith, Incorporating International Human Rights in a Devolved Context, European Futures, 17 September 2018 https://www.europeanfutures.ed.ac.uk/incorporating-international-human-rights-in-a-devolved-context/

21 Judith Resnik, ‘Law's Migration: American Exceptionalism, Silent Dialogues, and Federalism's Multiple Ports of Entry’, (2006) 115 Yale Law Journal 1564

22 Boyle and Hughes Routes to Remedy for Violations of Economic, Social and Cultural Rights. For a discussion of the incorporation of children’s economic and social rights under international law into the domestic law of various jurisdictions, see A. Nolan , Children’s Socio-economic Rights, Democracy and the Courts (Oxford: Hart Publishing, 2011).

23 Jeff King, Judging Social Rights (Cambridge University Press 2011)

24 Katie Boyle, Models of Incorporation and Justiciability of Economic, Social and Cultural Rights, Scottish Human Rights Commission, (2018) at 14. See also UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 19: The right to social security (Art. 9 of the Covenant), 4 February 2008, E/C.12/GC/19. Para.77-80; UN General Assembly, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law : resolution / adopted by the General Assembly, 21 March 2006, A/RES/60/147. See also UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 9: The domestic application of the Covenant, 3 December 1998, E/C.12/1998/24, para.4.

25 UN Committee on the Rights of the Child (CRC), General comment no. 5 (2003): General measures of implementation of the Convention on the Rights of the Child, 27 November 2003, CRC/GC/2003/5, para.22.

26 Para.7

27 Para.31

28 Constitutionally it is not clear whether the Scottish Parliament has the power to impose self-regulation by limiting its own competence, binding the Scottish Parliament in relation to subsequent legislation unless expressly repealed. The answer lies in the interpretation of ‘modification’. The Scotland Act prohibits modification of the Scotland Act 1998 (Schedule 4). The Scotland Act sets out the Scottish Parliament’s competence (section 29). Changing or adding to the list of areas that are beyond the competence of SP does not necessarily ‘modify’ s29. For a discussion on this see judgment by the Supreme Court EU Continuity Bill case [2018] UKSC 64 (13 December 2018) para.50-51 ‘the protected enactment has to be understood as having been in substance amended, superseded, disapplied or repealed by the later one.’

29 Åkerberg Fransson, Case C-617/10, ECLI:EU:C:2013:105

30 Protocol (No 30) on the Application of the Charter of the Fundamental Rights of the European Union to Poland and to the United Kingdom annexed to the TEU and the TFEU

31 Joined Cases C-411/10 and C-493/10 N.S. and M.E., judgment of 21 December 2011, ‘Article 1(1) of Protocol (No 30) explains Article 51 of the Charter with regard to the scope thereof and does not intend to exempt the Republic of Poland or the United Kingdom from the obligation to comply with the provisions of the Charter or to prevent a court of one of those Member States from ensuring compliance with those provisions’ at para.120

32 See section 6 HRA and the distinction made in Limbuela for example, Regina v Secretary of State for the Home Department (Appellant) ex parte Adam (FC) (Respondent) Regina v Secretary of State for the Home Department (Appelant) ex parte Limbuela (FC) (Respondent) Regina v Secretary of State for the Home Department (Appellant) ex parte Tesema (FC) (Respondent) (Conjoined Appeals) 2005 UKHL 66 para. 4-5

33 General Comment No.16 (2013) On State bligations regarding the impact of the business sector on children’s rights.

34 Please see recent publications on this including Katie Boyle, Models of Incorporation and Justiciability for Economic, Social and Cultural Rights (SHRC 2018) and Katie Boyle, The First Minister’s Advisory Group on Human Rights Leadership: a new path forward on incorporation of economic, social, cultural and environmental rights, (2019) 4 European Human Rights Law Review 361-373

35 IBID

36 For more on the position of children with regard to democratic law and policy decision-making, see Aoife. Nolan, Children’s Socio-economic Rights, Democracy and the Courts (Oxford: Hart Publishing, 2011).

37 UN General Assembly, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law : resolution / adopted by the General Assembly, 21 March 2006, A/RES/60/147

38 General Comment no.5 (2003) para.24

39 UN Basic Principles and Guidelines on the Right to a Remedy para.22

40 https://humanrightsleadership.scot/wp-content/uploads/2018/12/First-Ministers-Advisory-Group-on-Human-Rights-Leadership-Final-report-for-publication.pdf p.33

41 Burden v UK Application No 13378/05, Judgment, 12 December 2006

42 See FN 19 and discussion above on ‘self-regulation’

43 See Rule of Court 22.3(6) available at https://www.scotcourts.gov.uk/docs/default-source/rules-and-practice/rules-of-court/court-of-session/chap22.pdf?sfvrsn=8

44 Scottish Law Commission, Report No. 154, Multi-Party Actions (1996), para.64.

45 Scottish Civil Court Review (2009), Volume 2, chapter 13, pp.152-155, available at https://www.scotcourts.gov.uk/docs/default-source/civil-courts-reform/report-of-the-scottish-civil-courts-review-vol-1-chapt-1---9.pdf?sfvrsn=4

46 See Rule of Court 2.2 available at https://www.scotcourts.gov.uk/docs/default-source/rules-and-practice/rules-of-court/court-of-session/chap02.pdf?sfvrsn=10

47 Court of Session No.2 of 2012, https://www.scotcourts.gov.uk/rules-and-practice/practice-notes/court-of-session-directions

48 Court of Sessions Directions No.2 of 2015 and No.2 of 2016, https://www.scotcourts.gov.uk/rules-and-practice/practice-notes/court-of-session-directions

49 Policy Memorandum, Civil Litigation (Expenses And Group Proceedings) (Scotland) Bill, para.94

50 César Rodríguez-Garavito, 'Beyond the Courtroom: The Impact of Judicial Activism on Socioeconomic Rights in Latin America', (2011) 89 Texas Law Review 1669 at 1671 and David Landau, ‘The Reality of Social Rights Enforcement’ (2012) 53(1) Harvard International Law Journal 189 at 192

51 First Minister’s Advisory Group on Human Rights Leadership, Recommendations for a new human rights framework to improve people’s lives, Report to the First Minister (December 2018) available at http://humanrightsleadership.scot/wp-content/uploads/2018/12/First-Ministers-Advisory-Group-post-10th-December-update.pdf at 29 and 35

52 For more on this, see Aoife. Nolan, ‘Fit For Purpose? Human Rights in Times of Financial and Economic Crisis’ (2015) 4 European Human Rights Law Review 358.

53 As with the ECHR, some provisions are clearly aimed at signatory nations and would not be appropriate.

54 I am assuming that incorporation into Scots law will not extend to the Protocol which the United Kingdom is not a signatory to.

55 Or alternatively an existing group could be used such as the authorities which are subject to the provisions of the Public Records (Scotland) Act 2011 or to the Freedom of Information (Scotland) Act 2002 (the latter of which is the approach adopted in the Data Protection Act 2018). Schedule 1 of the Children and Young People (Scotland) Act 2014 is a promising candidate in that it does appear to cover all the bodies most likely to be in a position to implement UNCRC rights. A final alternative is to use a functional description rather than a list but this runs the risk of making the actual extent of the law unclear.

56 I think this is an important decision which we haven’t yet had discussion on.

57 If we decide under 3(2)(a) to go for primary legislation only it would probably be necessary to include secondary legislation relating to reserved matters as part of this sub-section.

58 Staff from the SG Legal Directorate were present at meetings of the working group to listen to discussions and not to provide legal advice to members of the working group.

59 Staff from the SG Legal Directorate were present at meetings of the working group to listen to discussions and not to provide legal advice to members of the working group.

60 Staff from the SG Legal Directorate were present at meetings of the working group to listen to discussions and not to provide legal advice to members of the working group.

61 However, it was acknowledged that, in these circumstances, the ability of Scottish public bodies to provide that care and support might be influenced by the UK Government.

62 https://www.liverpool.ac.uk/media/livacuk/law/2-research/ilhru/EHRC,Enhancing,the,Status,of,UN,Treaty,Rights.pdf. See page 5.

63 Progressing the Human Rights of Children in Scotland: An Action Plan 2018-2021

64 http://help.elearning.ext.coe.int/

65 https://www.ohchr.org/EN/Issues/Education/Training/Pages/Programme.aspx

66 Staff from the SG Legal Directorate were present at meetings of the working group to listen to discussions and not to provide legal advice to members of the working group.

67 Section 2 of the 2014 Act places a duty on a wide range of public authorities to report every 3 years on the steps they have taken to secure better or further effect of the UNCRC requirements within their areas of responsibility. The first reports are due as soon as practicable after 1 April 2020.

68 Incorporating the UN Convention on the Rights of the Child into Scots Law: Consultation, p24/25.

69 Staff from the SG Legal Directorate were present at meetings of the working group to listen to discussions and not to provide legal advice to members of the working group.

70 https://www.cypcs.org.uk/ufiles/Children's-Rights-Scotland-Bill.pdf

71https://d3n8a8pro7vhmx.cloudfront.net/scottishyouthparliament/pages/281/attachments/original/1564484934/SYP's_response_to_UNCRC_consultation_.pdf?1564484934.

72 https://www.echr.coe.int/Documents/Rules_Court_ENG.pdf

73 https://futuregenerations.wales/about-us/future-generations-act/.

74 Staff from the SG Legal Directorate were present at meetings of the working group to listen to discussions and not to provide legal advice to members of the working group.

75 Staff from the SG Legal Directorate were present at meetings of the working group to listen to discussions and not to provide legal advice to members of the working group.

76 https://www.gov.scot/groups/childrens-rights-working-group/

77 https://consult.gov.scot/children-and-families/uncrc/consultation/published_select_respondent

78 Staff from the SG Legal Directorate were present at meetings of the working group to listen to discussions and not to provide legal advice to members of the working group.


Contact

Email: ChildrensRightsandParticipation@gov.scot