The UNCRC was adopted by the General Assembly of the United Nations in 1989 and it was ratified by the UK Government in 1991. It is the most widely ratified human rights treaty in the world. The UNCRC was a landmark treaty, recognising the importance of childhood and the unique needs of children across the globe. It sets out the civil, political, economic, social and cultural rights that all children, everywhere, are entitled to and it remains, to this day, the global “gold standard” for children’s rights. The rights in the UNCRC are guaranteed to every child, whatever their ethnicity, gender, religion, language, abilities or any other status.
The United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill will incorporate, into Scots law, the UNCRC and the first optional protocol (on the involvement of children in armed conflict) and the second optional protocol (on the sale of children, child prostitution and child pornography).
Incorporation of the UNCRC will mean that public authorities, including the Scottish Government, will be legally obliged not to act incompatibly with the provisions of the UNCRC that the Bill will incorporate into Scots law. If they don’t, children, young people and their representatives will be able to use the courts to enforce their rights. The Bill aims to 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 take a “maximalist” approach to incorporation, meaning that the Bill will incorporate as much of the UNCRC and the first and second optional protocols as is within legislative competence, using a “direct” model of incorporation i.e. using the wording of the articles as found in the UNCRC itself.
Children and young people face additional barriers to realising their rights and accessing justice. In recognition of this, some 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.
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. Delivering the new legislation will improve outcomes for children and young people and help make Scotland the best place in the world to grow up.
The Scottish Government believes that incorporation of the UNCRC into Scots Law will have a positive impact in reducing inequalities for children and young people in Scotland. The Scottish Government wants a Scotland where policy, law and decision-making take account of children’s rights and where all children have a voice and are empowered not just to know and understand their rights, but also to assert and defend those rights and the rights of others. Fully realising the fundamental human rights of children and young people is essential to building the more prosperous, equal future which the Scottish Government wants for Scotland. Only by respecting and fully realising the rights of all children and young people can all of Scotland flourish.
Whilst all children and young people under the age of 18 will hold the rights being incorporated by the Bill equally, it is considered that the Bill will have a positive effect in relation to removing barriers which children and young people in protected groups can face in practice.
This draft document is an initial assessment of the impact of incorporating the UNCRC into Scots Law on groups with protected characteristics. The Scottish Government will continue to update this assessment where required, and any future iterations will reflect an increased understanding of these impacts as the amount of data and research available continues to grow.
Background – Policy Objectives
On the 20th November 2019, on the 30th 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.
It is intended that the Bill will have the effect of building children’s rights considerations into day-to-day decision-making and policy formulation across the public sector in Scotland. This is achieved in the Bill by requiring public authorities to act in a way that is not incompatible with the incorporated UNCRC rights and obligations (section 6). The Bill applies this compatibility duty to all public authorities to the maximum extent of the powers of the Scottish Parliament.
The Bill will, therefore, make it unlawful for public authorities to act in a way that is incompatible with the incorporated UNCRC requirements. As is the case under the Human Rights Act, a claim may be raised in legal proceedings brought against the public authority in question or may be relied on in any legal proceedings. It is intended that the ordinary rules of standing and title and interest would apply to claims brought under the Bill and as such no further provision in relation to this is provided for.
Further detail about the policy intention for the specific provisions in the Bill is provided in the Policy Memorandum.