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Publication - Impact assessment

Guidance on Part 1, Section 2 (Duties of Public Authorities in relation to the UNCRC) of the Children and Young People (Scotland) Act 2014

Published
21 December 2016
Directorate
Children and Families Directorate
Part of
Children and families, Communities and third sector
ISBN
9781786527172

Guidance for public authorities about how they should fulfil the duties set out in Part 1 of the Children and Young People (Scotland) Act 2014.

View supporting documents Supporting documents

Appendix 2: Human Rights Treaties

UNCRC and Scottish legislation

134. The UK Government ratified the UNCRC in 1991. Although it is the UK that is the state party to the UNCRC, the Convention and its Articles are reflected in many aspects of existing Scottish legislation. For example, "best interests" (Article 3) is reflected through provisions that treat welfare as "the paramount consideration" in the Children (Scotland) Act 1995 and Children's Hearings (Scotland) Act 2011. The importance of the child's voice being heard (Article 12) is reflected through the 1995 Act obligation on those fulfilling a parental responsibility, and on courts, to give children the opportunity to express their view, and to have regard to their view taking into account the child's age and maturity. The Standards in Schools (Scotland) Act 2000 provides that it shall be "the right of every child of school age" to have a school education provided (or arranged by) the State and repeats parts of the provisions of Article 29 of the UNCRC.

135. For additional information on the links between children's rights and Scottish legislation see the Scottish Government's "Children's Rights Legislation in Scotland: A Quick Reference Guide", produced to accompany the CRWIA guidance. A CRWIA has been undertaken as part of the policy development of Part 1, and is illustrative of the use of the UNCRC as the framework for reporting.

UK and Scottish Government reporting on international human rights treaties

136. The UK is signatory to seven "core" United Nations human rights treaties, including the International Covenants on Civil and Political Rights (ICCPR), and on Economic, Social and Cultural Rights (ICESCR) as well as conventions against torture (CAT), racial discrimination (ICERD) and discrimination against women (CEDAW), and conventions on the rights of the child (UNCRC) and the rights of persons with disabilities (UNCRPD) (see below for list of treaties).

137. On a 4-7 year cycle, the UK submits reports to the relevant UN Committee on its implementation of each treaty. These reports address both reserved and devolved matters and usually incorporate contributions from the Scottish Government. After considering evidence from a range of sources, including an interactive dialogue with representatives from the UK, the Committee issues a set of Concluding Observations and recommendations on how the UK can make progress in implementing the particular Convention and upholding its international obligations. Several of the recommendations relate to matters for which the Scottish Government is responsible in Scotland. As well as the Convention on the Rights of the Child, recommendations concerning children's rights have been made by UN Committees during reviews of the UK under other treaties, such as ICCPR, ICESCR, the UN Convention against Torture and the UN Convention on the Elimination of all forms of Discrimination against Women. Other UN member states also made recommendations concerning children's rights during the UK's last overarching review of its human rights record under the Universal Periodic Review process in 2012.

138. The UN Committee on the Rights of the Child has responsibility for overseeing compliance with the UNCRC in all 195 states that have ratified it, and takes evidence regarding implementation in the UK approximately every 5 years. The most recent Concluding Observations focusing on the UK were published in 2016.

139. In 2009 the Scottish Government published "Do the Right Thing"[29], its response to the 2008 Concluding Observations of the UN Committee on the Rights of the Child. This was a clear commitment by the Scottish Government to account for actions to further promote children's rights. As part of that commitment the Scottish Government subsequently published a Progress Report[30] in 2012 on the progress made since the 2009 document. It gave a further commitment to demonstrate the importance the Scottish Government places on children's rights through the promise to publish similar reports in the future.

140. The Fifth Periodic report to the UNCRC[31] was published by the UK Government in May 2014. As the UK Report covers the whole of the UK it has limited information on Scotland. The Scottish Parliament and the Scottish Government have devolved powers in respect of the majority of areas which impact on children and families, including health, social care and justice. As such the Scottish Government published its own Report as part of its submission to the UK Report in June 2013[32]. However, the UK Government retains control over a number of reserved matters. This limits the extent to which the Scottish Government and Scottish Parliament can give effect to the UNCRC. Nevertheless, steps have been taken to strengthen the delivery of person-centred public services in Scotland, often differing to other parts of the UK. One of those steps is Part 1 of the Act.

141. The UNCRC is the only international Human Rights Treaty which expressly gives Non-Governmental Organisations (NGOs) a role in monitoring its implementation. NGOs are encouraged to submit reports to the Committee on the Rights of the Child about the implementation of the UNCRC. Other UN Committees have, however, recommended similar measures as part of their concluding observations e.g. the 2016 Concluding Observations from the Committee on Economic, Social and Cultural Rights: "The Committee also encourages the State party to engage non-governmental organizations and other members of civil society in the follow-up to the present concluding observations and in the process of consultation at the national level prior to the submission of its next periodic report".

Together (Scottish Alliance for Children's Rights)

142. Together (Scottish Alliance for Childrens Rights) is an alliance of Scottish NGOs whose work impacts on children and young people. Together works to improve the awareness, understanding and implementation of the UNCRC. As part of its activity, the organisation reports to the UN on behalf of children's organisations across Scotland with the most recent report produced in 2015.[33] Together also publishes its annual "State of Children's Rights in Scotland"[34] report with the most recent published in November 2016. The Scottish Government welcomes Together's, and other NGO's independent perspectives on how far children in Scotland are able to enjoy and exercise their rights.

Human Rights Act 1998 (section 6)

143. The Human Rights Act 1998 is an Act of the Westminster Parliament and came into force on 2 October 2000. The Act gives further effect to rights and freedoms guaranteed under the European Convention on Human Rights (ECHR) by incorporating certain core ECHR rights ("the Convention rights") into domestic law. It makes it unlawful for a UK public authority to act incompatibly with the Convention rights and allows for a case to be brought in a UK court or tribunal against the authority where it does so.

The European Convention on Human Rights (ECHR)

144. The ECHR is a treaty of the Council of Europe. It was adopted in 1950, ratified by the Westminster Parliament in 1951, and came into force in September 1953. It has now been ratified by 47 states. The Convention guarantees a series of rights and freedoms, many of which have a direct impact on the rights of children including:

  • the right to life (Article 2);
  • the right to freedom from torture and inhuman or degrading treatment or punishment (Article 3);
  • the right to freedom from slavery, servitude and forced or compulsory labour (Article 4);
  • the right to liberty and security of person (Article 5), and
  • the right to access to education (Protocol 2, Article 1).

145. All public authorities have a positive obligation to ensure that respect for human rights is at the core of their day to day work. The Human Rights Act underpins this by making it unlawful for a public authority to act (or fail to act) in a way which is incompatible with a Convention right.

146. Human rights in Scotland are further protected by the Scotland Act 1998. Under that Act, the Scottish Parliament has no power to pass legislation that is incompatible with the ECHR. If the Parliament were to do so, the incompatible aspects of the provisions would be invalid. The Act also provides that the Scottish Ministers have no power to make subordinate legislation which is incompatible with a Convention right, or act in any other way which would be incompatible.

Scotland's National Action Plan for Human Rights

147. Following a development phase coordinated by the Scottish Human Rights Commission, Scotland's National Action Plan for Human Rights (SNAP) was launched in December 2013 as a roadmap for the progressive realisation of international human rights standards.[35] The Scottish Government is committed to working with the whole of Scottish society to deliver a shared vision of a Scotland where everyone can live a life of human dignity.

148. SNAP adopts a three pillar approach: the creation of a better culture, enabling people to lead better lives, and contributing to a better world. Human Rights Action Groups have been formed to take work forward, involving public, private and third sector organisations alongside wider civic society.

149. The first SNAP Annual Report was published on 26 November 2014 and outlines how partners have been moving forward, with a particular focus on establishing implementation groups, bringing organisations together, seeking to shape existing strategies and plans, and developing a coherent outcomes framework.[36] The second SNAP Annual Report was published in December 2015, maintaining a focus on how human rights can tackle and overcome barriers to everyone accessing and realising their human rights.[37] A third SNAP Annual Report, published in December 2016, summarises activities during 2016 and looks ahead to 2017 and beyond.[38]

List of international human rights treaties:

Contact

Email: Gita.Sharkey@gov.scot

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