Publication - Impact assessment

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

Child Rights and Wellbeing Impact Assessment (CRWIA) report evidencing the consideration that has been given to the impact the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill will have on children and young people.

29 page PDF

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29 page PDF

470.0 kB

Contents
United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill: CRWIA
CRWIA Stage 2 - The CRWIA – key questions

29 page PDF

470.0 kB

CRWIA Stage 2 - The CRWIA – key questions

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.

1. Which UNCRC articles are relevant to the policy/measure?

The Bill will incorporate the following articles of the UNCRC and first and second optional protocols as far as is possible within legislative competence:

  • articles 1 to 42 of the UNCRC;
  • articles 1 – 11 of the first optional protocol; and
  • articles 1 – 7 of second optional protocol.

The Scottish Government recognises the indivisibility and interdependence of the rights and obligations in the UNCRC. The Bill cannot incorporate rights and obligations within the articles of the UNCRC and first and second optional protocols where their inclusion would take the Bill outside the legislative competence of the Parliament. For example, certain of those provisions relate to reserved matters within the meaning of the Scotland Act 1998. The tables below show the articles affected and the reservations which apply. A version of the UNCRC and optional protocols showing all words that have been ‘carved out’ has been published separately by the Scottish Government and is available here.

The Scottish Government consider that it is imperative to make clear on the face of the Bill that the rights and obligations being incorporated remain within their context in the whole UNCRC and optional protocols as a matter of international law. The Bill therefore, provides in section 4 that the excluded provisions of the UNCRC and optional protocols may still be considered when interpreting the rights and requirements incorporated by the Bill. The Scottish Government recognises the interpretive value and significance of the preambles and consider that it is helpful to specifically reflect the importance of interpreting the incorporated rights and obligations within the context of the preambles on the face of the Bill.

United Nations Convention on the Rights of the Child

Article Fully/Partially Reserved relates to reserved matter Discussion
2 Partially relates to a reserved matter Elements of article 2 relate to the reserved matter of equal opportunities under section L2 of Part 2 of schedule 5 of the Scotland Act.
7(1) and (2) Partially relates to a reserved matter Elements of both article 7(1) and 7(2) relate to the reserved matter of immigration and nationality in section B6 of Part 2 of schedule 5 of the Scotland Act.
8(1) Partially relates to a reserved matter Elements of article 8(1) relate to the reserved matter of immigration and nationality in section B6 of Part 2 of schedule 5 of the Scotland Act.
9(4) Partially relates to a reserved matter Elements of article 9(4) relate to the reserved matter of immigration and nationality in section B6 of Part 2 of schedule 5 of the Scotland Act.
10(1) Fully relates to a reserved matter Article 10(1) relates to the reserved matter of immigration and nationality in section B6 of Part 2 of schedule 5 of the Scotland Act.
10(2) Partially relates to a reserved matter Elements of article 10(2) relate to the reserved matter of immigration and nationality in section B6 of Part 2 of schedule 5 of the Scotland Act.
11(2) Fully relates to a reserved matter Article 11(2) relates to the reserved matter of international relations in paragraph 7(1) of Part 1 of schedule 5 of the Scotland Act.
21(e) Partially relates to a reserved matter Elements of article 21(e) relate to the reserved matter of international relations in paragraph 7(1) of Part 1 of schedule 5 of the Scotland Act.
26(1) Partially relates to a reserved matter Elements of article 26(1) relate to the reserved matter of national insurance under section F1 of Part 2 of schedule 5 of the Scotland Act.
27(4) Partially relates to a reserved matter Elements of article 27(4) relate to the reserved matter of international relations in paragraph 7(1) of Part 1 of schedule 5 of the Scotland Act.
34 Partially relates to a reserved matter Elements of article 34 relate to the reserved matter of international relations in paragraph 7(1) of Part 1 of schedule 5 of the Scotland Act.
35 Partially relates to a reserved matter Elements of article 35 relate to the reserved matter of international relations in paragraph 7(1) of Part 1 of schedule 5 of the Scotland Act.
38(3) Fully relates to a reserved matter Article 38(3) relates to the armed forces which is reserved under paragraph 9 of Part 1 of schedule 5 of the Scotland Act.

The First Optional Protocol on the involvement of children in armed conflict

Article Fully/Partially Reserved relates to reserved matter Discussion
1 Fully relates to a reserved matter Article 1 relates to the armed forces, which is reserved under paragraph 9 of Part 1 of schedule 5 of the Scotland Act.
2 Fully relates to a reserved matter Article 2 relates to the armed forces which is reserved under paragraph 9 of Part 1 of schedule 5 of the Scotland Act.
3 Fully relates to a reserved matter Article 3 relates to the armed forces which is reserved under paragraph 9 of Part 1 of schedule 5 of the Scotland Act.

The Second Optional Protocol on the sale of children, child prostitution and child pornography

Article Fully/Partially Reserved relates to reserved matter Discussion
5
  • Fully relates to a reserved matter
Article 5 relates to the reserved matter of extradition under section B11 of Part 2 of schedule 5 of the Scotland Act.
6(1)
  • Partially relates to a reserved matter
Elements of article 6(1) relate to the international relations and extradition reservations in, respectively, paragraph 7(1) of Part 1 and section B11 of Part 2 of schedule 5 of the Scotland Act.
10(1), (2) and (3)
  • Fully relates to a reserved matter
Article 10(1)-(3) relate to the international relations reservation under paragraph 7(1) of schedule 5 of the Scotland Act.

2. What impact will the policy/measure have on children’s rights?

The Scottish Government is committed to a revolution in children’s rights. The United Nations Convention of the Rights of the Child (Incorporation) (Scotland) 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 can be enforced in the courts.

The incorporation of the UNCRC into Scots Law will, therefore, have a significant positive impact on children’s rights in Scotland. The different aspects of the Bill and its impact are set out below. In addition, the process involved in developing and implementing the Bill will aid the raising of awareness of children’s rights across Government and Scottish society.

Place a duty on public authorities – The Bill will make it unlawful for public authorities to act in a way that is incompatible with the incorporated UNCRC requirements (as defined in the Bill). The purpose of this duty – referred to elsewhere in this document as the “compatibility duty” is to protect children’s rights and to further the fulfilment of children’s rights in Scotland.

Incorporate in full and directly as far as is possible within legislative competence – The Bill will take a ‘maximalist’ approach to incorporation, meaning that it will incorporate the UNCRC and the first and second optional protocols in full and directly as far as is possible within legislative competence.

Ensure the rights and obligations apply to public authorities – Many articles of the UNCRC are drafted in a way so as to place obligations on ‘States Parties’. Whilst obligations under the UNCRC will continue to rest on the UK as a matter of international law, effect is given to these obligations across the whole system of government and public administration in Scotland, by the actions of many different public authorities and some private bodies undertaking functions of a public nature. Provision will be made in the Bill so that the compatibility duty has a similar effect to the equivalent duty in the Human Rights Act 1998 (HRA), so that public authorities must, in everything that they do, act compatibly with the UNCRC.

Apply to all persons under 18 – Article 1 of the UNCRC provides that: “For the purposes of the present Convention, a child means every human being below the age of 18 years unless under the law applicable to the child, majority is attained earlier”. The Scottish Government believes that all children should benefit from the rights and obligations in the UNCRC up to the age of 18. As such, the Bill will provide that, for the purposes of the incorporated rights and obligations, a child is a person under 18.

Give rights holders the ability to challenge breaches of their rights by public authorities in the courts – The Bill will make a breach of the compatibility duty (i.e., the requirement not to act incompatibly with the incorporated rights and obligations) by public authorities justiciable in the courts.

Require claims to be brought within a specified time limit – It is widely recognised that children and young people face additional barriers in realising their rights and seeking access to justice. The approach which the Bill will take on time limits is modelled on the HRA and the Scotland Act 1998 but with one important difference. The Bill will provide that, in calculating the relevant time limit, any period in which the claimant was a child (for these purposes, when an individual is under 18) is excluded. Once those time limits become applicable, the Bill will provide for the court’s discretion to dis-apply a time limit where it considers it equitable to do so in the circumstances, as under the HRA and Scotland Act 1998.

Enable the courts to make strike down or incompatibility declarators in respect of incompatible legislation – In line with the ‘maximalist’ approach, it is the Scottish Government’s intention that a court should be able to make a strike down declarator (explained below) where this is possible within legislative competence. This will mean that the Bill will treat legislation that pre-dates and post-dates commencement of the Bill differently. The Bill will enable the Courts to:

(1) make a strike down declarator where the incompatible provision is in legislation which pre-dates the UNCRC Act. A strike down declarator is a declarator stating that the provision ceases to be law to the extent of the incompatibility; and

(2) make an incompatibility declarator where the provision is in legislation which post-dates the UNCRC Act. An incompatibility declarator is a declarator which states the incompatibility but does not affect the validity, continuing operation or enforcement of the provision which has been declared incompatible.

In conjunction with further measures in the Bill, the Scottish Government believes the Bill puts in place a very strong framework which will ensure compatibility of all legislation with children’s rights in practice.

Enable the courts to award damages – The Bill will require courts to consider whether awarding damages (and, if so the amount of damages) is necessary to provide “just satisfaction”.

Require Ministers to report following an incompatibility declarator or strike down declarator – Where an incompatibility declarator or strike down declarator is issued by a court, the Bill will require Ministers to state what action they intend taking in response. This statement should be made within a period of 6 months from the court’s decision.

Require the Courts to notify the Lord Advocate and the Children’s Commissioner – The Bill will require that the Lord Advocate be notified when a court is considering whether to make a strike down declarator or an incompatibility declarator in relation to legislation which is alleged to be incompatible with the incorporated UNCRC requirements. The Scottish Government recognises the significant imbalance of power between children and young people, on the one hand, and Ministers on the other. As such, the Bill will require that notification should also be given in these circumstances to the Commissioner in order for the Commissioner to have the opportunity to make representations to the Court.

Enable the courts to consider the preambles and excluded provisions of the UNCRC as sources of interpretation – The Scottish Government recognises the indivisibility and interdependence of the rights and obligations in the UNCRC. The limitations of legislative competence, however, mean that the Bill requires to take the unusual step of ‘carving out’ rights and obligations from the UNCRC and first and second optional protocols. Given this, the Scottish Government considers that it is imperative to make clear on the face of the Bill that the rights and obligations being incorporated remain within their context in the whole UNCRC and optional protocols as a matter of international law. The Bill therefore, provides in section 4 that the excluded provisions of the UNCRC and optional protocols may still be considered when interpreting the rights and obligations incorporated by the Bill. The Scottish Government recognises the interpretive value and significance of the preambles and consider that it is helpful to specifically reflect the importance of interpreting the incorporated rights and obligations within the context of the preambles on the face of the Bill.

Enable a reference to a higher court – The Scottish Government recognises that it will take time for jurisprudence in relation to the interpretation of the rights and obligations incorporated in the Bill to develop. The Bill will enable lower courts to refer “compatibility issues” (in the case of criminal proceedings) and “compatibility questions” (in proceedings other than criminal proceedings) to the higher courts in appropriate cases.

Require that legislation should be read in a compatible way if possible – The Scottish Government considers that legislation should be given effect in a way that is compatible with children’s rights in every case where this is possible. Legislation should only be found to be incompatible where this is not possible. The Bill will, therefore, require legislation to be read and given effect in a way that is compatible with the incorporated UNCRC requirements, so far as it is possible to do so.

Require scrutiny of future government legislation and strategic decisions made by Ministers – The Bill will require scrutiny of the compatibility of primary and secondary legislation prior to introduction or laying by requiring the Scottish Ministers to undertake a Child Rights and Wellbeing Impact Assessment (CRWIA) and to make a statement of compatibility. The Bill will also place the requirement to undertake a CRWIA on Scottish Ministers in relation to such decisions of a strategic nature relating to the rights and wellbeing of children as they consider appropriate. This is to ensure transparency and accountability in relation to how the Scottish Ministers consider and make provision for children’s rights in their strategic decision-making in practice. The Bill will require that detail on the strategic decisions for which Ministers will undertake a CRWIA should be included in the Children’s Rights Scheme.

Allow for remedial regulations in relation to incompatibilities – It is important that the Scottish Government can act swiftly to remedy incompatible legislation so that breaches or potential breaches of children’s rights can be remedied or not allowed to occur in practice. The Bill will therefore include powers to make remedial regulations which can be used to amend legislation which is or may be incompatible with the incorporated UNCRC requirements.

Enable the Children’s Commissioner to bring a claim in the public interest – The Bill will make provision supplementing the current powers of the Commissioner and enabling them to raise proceedings under the Bill. Whilst children and young people or their representatives will be able to raise claims under the Bill, this power recognises that for many children and young people taking action through the courts is challenging and may not be their preferred option.

Require that Ministers publish a Children’s Rights Scheme – The Bill will require Scottish Ministers to publish a Children’s Rights Scheme (Scheme) setting out what arrangements Ministers have made or propose to make to fulfil the compatibility duty (i.e. the duty not to act incompatibly with the incorporated UNCRC requirements). In particular, the Bill will provide that a Children’s Rights Scheme published by Scottish Ministers may include arrangements of the Scottish Ministers to:

  • ensure that children are able to participate in the making of decisions that affect them;
  • raise awareness of and promote the rights of children;
  • consider the rights of children in the Scottish Government’s budget process;
  • ensure that their actions contribute to any national outcome for children determined by them under Part 1 of the Community Empowerment (Scotland) Act 2015; and
  • prepare Child Rights and Wellbeing Impact Assessment.

The Bill will require that the Scheme is laid before the Scottish Parliament. The Bill will require 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.

Repeal Part 1 of the Children and Young People (Scotland) Act 2014 (2014 Act) – Building upon the current reporting requirements in section 2 of Part 1 of the Children and Young People (Scotland) 2014 Act, it is intended that listed public authorities should continue to be required to report every 3 years. The Bill will make similar provision for a reporting requirement replacing the reporting requirement in the 2014 Act so that listed public authorities must report on the steps taken to fulfil the compatibility duty under the Bill.

3. Will there be different impacts on different groups of children and young people?

The UNCRC sets out the civil, political, economic, social and cultural rights that all children hold up to the age of 18 years old, whatever their ethnicity, gender, religion, language, abilities or any other status. 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).

This benefit was noted during the consultation, “Children’s Rights: Consultation on incorporating the United Nations Convention on the Rights of the Child into our domestic law in Scotland” by organisations who represent children and young people. For example, LGBT Youth Scotland highlighted that the right to privacy provided by article 16 can help ensure that LGBT young people’s rights are protected so they are not needlessly ‘outed’ to their families and other professionals by public authorities.

The Scottish Government have also often heard that children with disabilities experience barriers to the realisation of their rights often as a result of the environment in which they live rather than as a result of their impairment. Incorporation of article 23 will ensure their right to live a full and decent life with dignity and, as far as possible, independence and to play an active part in the community can be claimed.

4. If a negative impact is assessed for any area of rights or any group of children and young people, what options have you considered to modify the proposal, or mitigate the impact?

The Scottish Government’s ultimate ambition is for all children’s rights to be fully respected, protected and fulfilled in Scotland. The Bill will ensure that as far as possible within legislative competence, all legislation and practice is brought into line with children’s rights and that where breaches of rights occur, these do not endure and are remedied. However, the extent of the rights that can be incorporated through the Bill is limited by the current powers of the Scottish Parliament, and the Bill has been drafted in line with those restrictions.

It has not been possible to incorporate those elements of the UNCRC and the first and second optional protocols which relate to reserved matters. It has also not been possible to incorporate Optional Protocol 3 on a communications procedure as this has not been ratified by the UK Government. The tables provided in Question 1 of this CRWIA explain the rights and obligations that are NOT included in the Bill.

The Scottish Government recognises the fundamental importance and indivisibility of the rights which have not been able to be incorporated by this Bill. To address this, the Scottish Government continues to pursue an order under section 30 of the Scotland Act 1998, which would transfer competence to the Scottish Parliament to incorporate the UNCRC and Optional Protocols in full. In addition, the Bill makes it clear that the rights and obligations being incorporated remain within their context in the whole UNCRC and optional protocols as a matter of international law. The Bill therefore, provides in section 4 that the excluded provisions of the UNCRC and optional protocols may still be considered when interpreting the rights and obligations incorporated by the Bill. The Bill will also make provision to allow incorporation of those provisions of the UNCRC currently beyond our powers into our domestic law if – and when - the powers of the Scottish Parliament change in the future.

5. How will the policy/measure contribute to the wellbeing of children and young people in Scotland?

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 to rights and wellbeing for children and young people. Getting it right for every child and the eight wellbeing indicators have their origins in the UNCRC. The UNCRC general principles of non-discrimination, best interests of the child, right to life, survival and development, and respect for the views of the child, are the overarching rights needed for any and all rights in the UNCRC to be realised, and as such, should be the foundation for any assessment of a child’s or young person’s wellbeing. This rights-based approach emphasises the responsibility of all public services and their partners to protect children’s rights and entitlements.

Incorporation of the UNCRC into Scots law will contribute to the wellbeing of children and young people in Scotland. The following is an example of how the articles being incorporated through this Bill can be mapped onto each indicator:

*articles marked with an asterisk should be checked against the list in Question 1 for reserved status.

Safe - Protected from abuse, neglect and harm by others at home, at school and in the community. This is supported by Incorporation of articles 11*, 19, 22, 32, 33, 34*, 35*, 36, 37, 38*.

Healthy - Having the highest attainable standards of physical and mental health, access to suitable healthcare, and support in learning to make healthy and safe choices. This is supported by Incorporation of articles 3, 6, 24 and 39.

Achieving - Being supported and guided in their learning and in the development of their skills, confidence and self-esteem at home, at school and in the community. This is supported by Incorporation of articles 4, 18, 28 and 29.

Nurtured - Having a nurturing place to live, in a family setting with additional help if needed or, where this is not possible, in a suitable care setting. This is supported by Incorporation of articles 4, 5, 18, 20, 21*, 25 and 27*.

Active - Having opportunities to take part in activities such as play, recreation and sport which contribute to healthy growth and development, both at home and in the community. This is supported by Incorporation of article 31.

Respected - Having the opportunity, along with carers, to be heard and involved in decisions which affect them. This is supported by Incorporation of articles 2*, 3, 4, 8*, 12, 13, 14, 16, 17 and 18.

Responsible - Having opportunities and encouragement to play active and responsible roles in their schools and communities and, where necessary, having appropriate guidance and supervision and being involved in decisions that affect them. This is supported by Incorporation of articles 3, 12, 14, 15 and 40.

Included - Having help to overcome social, educational, physical and economic inequalities and being accepted as part of the community in which they live and learn. This is supported by Incorporation of articles 3, 6, 18, 23, 26* and 27*.

6. How will the policy/measure give better or further effect to the implementation of the UNCRC in Scotland?

Delivering the rights of children and young people, as enshrined in the United Nations Convention on the Rights of the Child (UNCRC), is fundamental to making children’s rights real and Scotland the best place in the world to grow up. In addition to the legal protection for children’s rights that the Bill provides, the Scottish Government will develop an implementation programme covering three years to ensure that the Bill’s duties are fulfilled, with children’s rights being embedded in decision-making at all levels in public services.

Leadership – The Scottish Government is fully committed to ensuring that accessible guidance and training is developed as part of an implementation programme in support of the Bill and for public authorities to support preparation and planning in advance of commencement of the Bill. This will be supported by a central implementation team within the Scottish Government who will be dedicated to coproducing and delivering effective guidance and training with public authorities and the third sector so that it best meets the needs of practitioners, and the rights of the children and young people they serve. The Scottish Government will ensure that an appropriate governance structure provides collective leadership to the implementation programme. The central implementation team will also be responsible for delivery of the Scottish Government’s Children’s Rights Scheme. The Scottish Government will continue to make Child Rights and Wellbeing Impact Assessment guidance and templates public so partners in the public sector and the third sector can assess how their policy and practice impacts on children’s rights and wellbeing.

Empowering children to claim their rights – Ensuring that children, young people and their families can claim their rights is central to delivering a Scotland where human rights are made real. As set out in the Progressing Children’s Human Rights Action Plan 2018-2021, children’s rights awareness-raising and children and young people’s participation are two of the strategic priorities to which the Scottish Government is already committed. The Scottish Government will make a fund of £250,000 available for awareness-raising in each of the three years of the implementation programme, with a commitment to increase funding to enable the participation of children and young people in decision-making in public services by £100,000 in each year for the same period. The awareness-raising activities aim to support children and young people across Scotland to be human rights defenders and challenge breaches of their and others’ rights. The fund for participation will look to provide a sustainable approach to the strategic participation of children and young people in decision-making, and to enable the voices of those children and young people who are seldom heard to be listened to. A social marketing campaign, at a cost of £200,000, will also be developed in the second year of the programme and delivered in the third year. This campaign aims to raise the profile and support for children’s rights across Scottish society.

Embedding children’s rights in public services – The Scottish Government recognises the vital role that public services play in delivering for children, young people and their communities. To ensure that public services are appropriately supported in delivering the step-change in respecting, protecting and fulfilling children’s rights that this Bill seeks to deliver, the Scottish Government will create a fund of £835,000 over two years to support the delivery of this implementation.

The fund will provide flexibility for an innovative implementation programme that gives the public sector access to the expertise of the third sector and the central implementation team. This fund will include a design phase to listen to children, young people and their families about what will make a difference to their experience of rights-respecting public services. Similarly, as part of the design phase, public bodies will also be engaged on their priorities for fulfilling their duties. This approach will enable public authorities to tailor implementation activities to best meet the rights of the children and communities they serve. The fund will deliver capacity-building and awareness-raising activities to practitioners in public services in Scotland. The fund will also be used to provide intensive support to senior leaders in public services to take proactive steps to embed children’s rights in their organisations and communities. The fund will also support public services to consider how to progressively realise the rights of children by utilising available resources to the maximum extent.

In addition to the fund to embed children’s rights, the Scottish Government is committed to refreshing the Getting it right for every child (GIRFEC) policy and practice guidance. The UNCRC is the foundation of GIRFEC. Accordingly, the upcoming practice guidance will reflect the incorporation of the UNCRC and will continue to promote children’s rights, including as a core element of good practice. This refreshed guidance will provide organisations and practitioners with confidence, clarity and practical support to deliver GIRFEC, underpinned by children’s rights at every level. This guidance is being developed in partnership with delivery partners and stakeholders including children, young people and parents. Engagement with key practitioners and stakeholder networks is already underway including health, education, social work, and leadership forums.

7. What evidence have you used to inform your assessment? What does it tell you?

The Scottish Government has drawn on a wide range of evidence in the development of this Bill and to inform this CRWIA.

The public consultation held between May and August 2019 on “Children’s Rights: Consultation on incorporating the United Nations Convention on the Rights of the Child into our domestic law in Scotland” generated a wide range of evidence about incorporation of the UNCRC and the impact of the Bill. In November 2019, analysis of all consultation responses was published. An accessible version of the consultation analysis can be found on the Scottish Government website. In addition, a stand-alone analysis based on consultation responses by respondents identified by the Scottish Government as being organisations that represent the views of children and young people is also available.

There was widespread support for the Scottish Government’s commitment to incorporate the UNCRC; it was viewed as representing a step forward in Scottish leadership for children’s rights. Only 4 out of 134 respondents expressed general opposition to the incorporation of the UNCRC and/or additional implementation of children’s rights when asked for their preferred method of incorporation.

The majority of those who answered the question identified direct incorporation as their preferred model (82 out of 134 responses). This model was favoured by over three quarters of third sector organisations who answered the question. Around one fifth of respondents expressed uncertainty as to their preferred model and/or could see the benefits and challenges associated with the various options (25 out of 134 responses). A direct incorporation model was also supported by all but one of the organisations which included the views of children and young people in their response.

The majority of those respondents who answered the question were in favour of the incorporation framework containing a duty to comply (125 out of 132 responses). This was the same for organisations representing the views of children and young people (10 out of 13 responses).

A large majority of respondents who answered the question felt that the Scottish Government should push forward with incorporation prior to the development of a Statutory Human Rights Framework (113 out of 136 responses).

A large majority of respondents who answered the question about a Children’s Rights Scheme favoured a requirement for the Scottish Government to include such a scheme in the Bill (116 out of 130 responses). This was the same for organisations which included the views of children and young people in their response (11 out of 13 responses).

A large majority of respondents who answered the question whether the Bill should include a requirement that any future legislation to be introduced in the Scottish Parliament should be accompanied by a statement of compatibility with children’s rights, agreed with that proposal (120 out 131 responses). A majority of organisations which included the views of children and young people in their response agreed also (9 out of 13 responses).

There was strong support for the Bill to contain a provision requiring an Act of the Scottish Parliament to be interpreted and applied so far as possible in a manner which is compatible with the rights provided for in the Bill (82 out of 105 responses). This was also supported by a majority of organisations which included the views of children and young people in their response (8 out of 13 respondents).

A large majority of respondents who answered the question agreed that rights-holders should be able to challenge acts of public authorities (131 out of 142 responses).

Around 3 in 10 respondents who provided written comments to the question suggested that provision should be made to enable third party representatives such as the Commissioner for Children and Young People in Scotland to bring cases or contribute to judicial proceedings relating to children’s rights (30 out 101 responses).

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” in the development of the policy for the Bill. 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.

Academic literature was consulted and key pieces are highlighted below.

To understand the international experience of the impact of incorporation, UNICEF’s report ,The UN Convention on the Rights of the Child: a study of legal implementation in 12 countries[1] was reviewed. It 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”.

Research[2] commissioned by the Scottish Government on the use of human rights legislation in the Scottish courts was reviewed to understand the impact of UNCRC incorporation on the volume of children’s rights litigation. This research suggests that a small increase in the amount of litigation would be potentially faced by public bodies.

Research commissioned by the Equality and Human Rights Commission on the impact of the Rights of Children and Young Persons (Wales) Measure 2011 on children’s rights in Wales[3] was reviewed to understand the impact of a “due regard” duty and the implementation of a Children’s Rights Scheme. It found that the Measure has helped to embed the UNCRC into policy making, increased Ministerial accountability and provided a platform for advocacy for children’s rights in Wales.

To inform an understanding of the potential impact of statutory CRWIA, research into the implementation of child rights impact assessments by national Government (Payne, 2019)[4] was consulted. This research showed that when used appropriately, these impact assessments provide a means to further progress, implement and embed human rights principles, standards and processes in the workings of government to make a child rights based approach the norm in policy development. It also suggested that the act of being involved in the drafting of a CRIA/CRWIA can change the way officials and politicians regard both children’s policy and children’s ‘place’ in society.

The 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. The Bill builds upon a strong foundation of existing policy, practice and legislation in Scotland which has sought to embed children’s rights. As is evident from the “Children’s Rights: Consultation on incorporating the United Nations Convention on the Rights of the Child into our domestic law in Scotland” responses, there is wide recognition in Scotland, however, that incorporating the UNCRC directly will significantly advance the protection and realisation of children’s rights.

International experience also suggests that a mixture of law, policy and practice is the best way to progress implementation of the UNCRC. Non-legislative measures that different countries have used include national strategies and action plans for children, children’s rights training and the establishment of children’s commissioners or ombudspersons. The Scottish Government will continue to pursue a range of measures to implement the UNCRC in addition to the Bill. The Scottish Government’s priorities for embedding a children’s rights approach in Scotland over the next three years are set out in “Progressing the Human Rights of Children in Scotland: 2018-2021 Action Plan”, published in December 2018. The first annual update on progress made on taking forward the Action Plan was published in November 2019.

Based on published research about the impact of UNCRC incorporation internationally and the use of human rights legislation in Scotland, a small increase in the amount of litigation faced by public bodies is anticipated; however, we will keep this under review.[5]

8. Have you consulted with relevant stakeholders?

The Scottish Government has engaged with a wide range of stakeholders to inform the development of this Bill. The Scottish Government recognises the need for continuous and effective engagement and will continue to engage with a range of stakeholders as the Bill progresses through parliament and into implementation.

Public consultation and engagement

The Scottish Government launched a public consultation on 22 May 2019 called “Children’s Rights: Consultation on incorporating the United Nations Convention on the Rights of the Child into our domestic law in Scotland” which invited views on the best model of incorporating the UNCRC into Scots law. The consultation was undertaken from 22 May 2019 to 28 August 2019. 162 responses were received from individuals, public bodies, third sector, legal organisations, academia and others.

To complement the public consultation, a range of bilateral official and Ministerial meetings were held over the summer, meeting 47 organisations representing a number of different sectors. The Scottish Government recognises the right of children to be involved in decisions that affect them and to that end, funded seven events which engaged over 180 children and young people to support their engagement in the consultation.

The responses to the consultation were published in November 2019, where the Scottish Government had permission to do so. In addition, the Scottish Government has published an analysis of all consultation responses was published. An accessible version of the consultation analysis can be found on the Scottish Government website.

Since the consultation closed, the Scottish Government has continued to engage with a range of stakeholders including:

  • Aberdeen City Council
  • Aberdeenshire Council
  • Association of Directors of Education in Scotland
  • Care Inspectorate
  • Child Protection Committees Scotland
  • Commissioner for Children and Young People in Scotland
  • Children’s Hearings Scotland
  • Community Justice Scotland
  • Disclosure Scotland
  • Fife Council
  • Judicial Institute for Scotland
  • Mental Health Welfare Commission
  • NHS Highland
  • Police Scotland
  • Public Health Scotland
  • Scottish Children’s Reporter Association
  • Scottish Courts and Tribunals Service
  • Scottish Enterprise
  • Scottish Legal Aid Board
  • Scottish Parliament
  • Scottish Prison Service
  • Scottish Public Services Ombudsman
  • Shetland Council
  • Social Work Scotland
  • South Lanarkshire Council
  • Sports Scotland
  • Together Scotland
  • The Convention of Scottish Local Authorities (COSLA)
  • The Scottish Social Services Council
  • UNICEF

UNCRC Incorporation working group

A short-life working group was convened in June 2019 to inform the development of a model that incorporates the United Nations Convention on the Rights of the Child (UNCRC) into domestic law in Scotland.

The Group considered the policy, practice and legislative implications of UNCRC incorporation, using the Scottish Government’s consultation document, 'Incorporating the UN Convention on the Rights of the Child into Scots Law consultation' as a key framework for its work.

The terms of reference, minutes from meetings, summaries of workshop discussions and a summary report of discussions of the Working Group can be found on the Scottish Government website. The group met a number of times and the views described in these documents are the opinions and discussions of those individuals in the working group, as expressed during the meetings of the group.

Members

  • Michael Chalmers, Director of Children and Families, Scottish Government (Chair)
  • Dr Katie Boyle, Associate Professor in International Human Rights Law, University of Stirling
  • Lynda Brabender QC, Westwater Advocates
  • Michael Clancy OBE, Director, Law Reform, The Law Society of Scotland
  • Nicola Dickie, Chief Officer, Children and Young People, COSLA
  • David Duncan, Chief Superintendent, Head of Safer Communities, Police Scotland
  • Juliet Harris, Director, Together Scotland
  • Mairi Macpherson, Deputy Director, Creating Positive Futures, Scottish Government
  • Dr Kenneth Meechan, Chair of FOI, Data Protection and Human Rights, SOLAR
  • Dragan Nastic, Senior Policy and Advocacy Advisor, UNICEF
  • Prof Aoife Nolan, Professor of International Human Rights Law, University of Nottingham
  • Laura Pasternak, Policy and Public Affairs Manager, Scottish Youth Parliament
  • Lucinda Rivers, Head of UNICEF UK in Scotland
  • Douglas Ross QC, Ampersand Advocates
  • Hannah Ross, Policy Assistant, COSLA
  • Norma Shippin, Director of Central Legal Office and legal adviser
  • Clare Simpson, Manager, Parenting Across Scotland
  • Suki Wan, Scottish Youth Parliament

The First Minister’s Advisory Group on Human Rights Leadership

The principal recommendation of the First Minister’s Advisory Group on Human Rights Leadership which reported on 10 December 2018 was the creation of a new statutory human rights framework for Scotland. This would involve a new Act of the Scottish Parliament (ASP) which incorporates rights from UN and other human rights treaties, including the UNCRC into Scots law. The Advisory Group proposed that such an ASP should set out, for the first time, and in one place, the rights belonging to everyone in Scotland. The group proposed that the ASP could be legislated for at the commencement of the next session of the Parliament in 2021.

Rather than delivering a Bill to incorporate the UNCRC in this parliamentary session, it would be possible to achieve this as part of such a comprehensive human rights framework. This would allow all rights to be brought together in one place, including those of children and young people under other human rights treaties. It would not, however, be possible to pass this legislation before the next Scottish Parliament election in 2021. As a result the Scottish Government has confirmed its intention to push ahead with the UNCRC incorporation now. The Advisory Group explicitly recognised in its report that longer term ambitions to incorporate all human rights treaties should not cause any delay to UNCRC incorporation.

Since then, the Scottish Government have kept the National Taskforce for Human Rights Leadership group advised on the policy development for the UNCRC Bill and it is expected that the approach taken can dovetail with any wider approach recommended by the Taskforce in due course.

9. Have you involved children and young people in the development of the policy/measure?

As identified in the previous question, the Scottish Government carried out a 14 week period of consultation and engagement to accompany the development of this Bill (“Children’s Rights: Consultation on incorporating the United Nations Convention on the Rights of the Child into our domestic law in Scotland”). Seven events held with children and young people were supported by the Scottish Government and hosted by the following organisations:

1. Children 1st

2. Children in Scotland

3. Children’s Parliament

4. Scottish Learning and Disability Commission

5. Scottish Youth Parliament

6. Young Scot

7. YouthLink Scotland

A stand-alone analysis based on responses to the public consultation by eleven respondents identified by the Scottish Government as being organisations that represent the views of children and young people was also undertaken. The responses included in that analysis are those received from the following:

  • Children 1st
  • Children at Harmeny School
  • Children in Scotland
  • Children’s Parliament
  • East Ayrshire Children and Young People’s Cabinet
  • Glenrothes Youth Forum
  • Highland Children and Young People’s Forum
  • LGBT Youth Scotland
  • Our Hearings Our Voice
  • Scottish Youth Parliament
  • Scottish Learning and Disability Commission
  • Young Scot
  • Youth Link Scotland

Here is a selection of responses from children, young people and stakeholders calling for the incorporation of the UNCRC into domestic law.

Children’s Parliament: Children tell us that making the UNCRC and Optional Protocols law in Scotland will result in more people respecting children’s rights and taking them seriously. To children, the idea of incorporation is naturally binding – there should be no question that the government and adults more generally should have to know, understand and fulfil children’s human rights. Incorporating the UNCRC will have a direct impact on the outcomes that children experience in Scotland and children recognise that having their rights respected in law will make a huge difference in their lives.

An attendee at a Scottish Youth Parliament consultation event: “Incorporation will mean protections that need to be guaranteed and safety for children and young people. It is easier to look at a written document that says that these are the things I should have, rather than kind of guessing what you think you should have. This is empowering for me as a young person”.

Children 1st: 30 years since the UNCRC was agreed by the UN, it is time that Scotland takes the next step in securing children's rights. We applaud the bold and decisive step taken towards this by the First Minster, and believe it is crucial that we push forward now with incorporation of the UNCRC.

Together: “Scotland has emerged with the potential to become an international leader in children’s rights

Further consultation and engagement with children and young people will also be undertaken during the passage of the Bill and this will also inform the development of this CRWIA.


Contact

Email: teja.bapuram@gov.scot