Theme 1: Legal mechanisms for incorporating the UNCRC into domestic law
When we talk about “incorporation” of an international convention, this is generally understood to mean that the substantive provisions of the convention can be relied upon and applied by the national courts and those provisions must, as a matter of domestic law, be applied by national authorities. Incorporating the UNCRC into our domestic law would be done by introducing a Bill to the Parliament with the overarching intention of embedding the rights in the UNCRC into the law in Scotland. This would further ensure that children’s rights are woven into policy, law and practice in Scotland and enable people to rely on their rights in the domestic courts. Ultimately, incorporating the UNCRC in Scots law aims to improve the outcomes and experiences of our children and young people.
Approach to the options consulted on
There is no single approach to the incorporation of an international convention into domestic law. The United Nations Committee on the Rights of the Child recognises that there are a variety of legal methods of implementing the UNCRC and makes clear that it is for individual states to decide how best to make children’s rights real in their particular country.
This section of the consultation seeks respondents’ views on which approach is most suitable for the Scottish context. Each of the different options presented has different impacts and as the arguments are finely balanced we do not provide a preferred option.
The legal and constitutional background
International treaties are not automatically part of the law in Scotland. Treaty provisions only become part of the law enforceable in the Scottish courts if, and to the extent that, they are implemented by legislation. That principle ensures that there is democratic scrutiny of the way that international obligations are translated into our own law. The usual method of implementing treaties such as the UNCRC in Scotland has been through detailed legislation giving effect to the rights set out in the treaty in a way which fits into our existing law, rather than through simply copying out the terms of the treaty. To give greater assurance that UNCRC rights will be respected in all circumstances, we plan either to directly incorporate those rights as closely as is achievable in the Scottish context, or to transpose those rights by enacting a suite of Scottish children’s rights.
The rights protected by international human rights treaties are typically expressed in very general terms. A benefit of the current approach to the implementation of treaty rights is that it means that the Parliament will frame legislation adapted to the circumstances in Scotland, with sufficient detail to provide clear guidance to those who need to apply and rely on the law, including the courts. However, a disadvantage of that approach in the field of human rights is that the rights are less visible as standalone rights, relevant in all circumstances, and it is not possible for individuals who consider that their rights have been infringed to seek to enforce the treaty rights directly in the Scottish courts.
In countries which, unlike Scotland, automatically regard treaty rights as part of their law, the courts are used to considering whether treaty rights are “self-executing” (i.e. can be enforced directly without any further legislation) or, on the other hand, require detailed legislation to give them practical effect. For example, in Belgium, the courts have held that Articles 2(1), 7 and 26(1) of the UNCRC do not have direct effect in Belgian law, but would require further legislation to give them practical effect, though such rights may be used as an interpretive tool. Because treaty rights are not automatically part of Scots law, the Scottish courts have not had to develop a similar doctrine for treaty rights generally.
The current approach to the implementation in the UK of international human rights treaties has already been significantly affected by the Human Rights Act 1998 and by membership of the European Union (EU). All public authorities have an obligation to comply with the ECHR and with the rights granted by EU law, including the rights set out in the EU Charter of Fundamental Rights, and those rights can be enforced directly in the courts. However, in each of these cases, there is a significant body of guidance about the way that the rights apply in particular circumstances, through the caselaw of the European Court of Human Rights and the Court of Justice of the EU and, in the case of EU law, the domestic courts can refer a question to the Court of Justice of the EU to obtain guidance on the application of the Charter of Fundamental Rights.
Regardless of the approach taken to incorporation of the UNCRC, the primary mechanism for the implementation of the UNCRC rights will continue to be through legislation - it will be for the Parliament, in the first instance, to legislate in a way which observes and implements the international obligations contained in the UNCRC. However, the approach to incorporation has significant implications for the respective roles of the Parliament and the courts.
Where an international treaty granting rights has been incorporated directly into domestic law, the courts will require to interpret the rights set out in the treaty, to decide whether the right at issue is or is not self-executing and, if the right is self-executing, to decide how the right applies in a particular context. On the other hand where such a treaty has been incorporated by transposition into domestic law, the courts will interpret the rights as enshrined in domestic law by the Parliament. Of course, whichever approach is taken, the domestic legal system should, in order to comply with the UK’s obligations in international law, comply with the standards set by the treaty.
There is no single right approach to incorporation. There are examples of different approaches in many countries across the world. We would invite respondents to take these considerations into account in responding to the specific questions.
The specific Scottish context
Scotland is not unique in the considerations which arise when considering how to incorporate the UNCRC. As with other countries, it is necessary to consider how incorporation will interact with existing legislation, judicial decisions and policy.
There are particular facets of the Scottish legal system, however, that will need to be borne in mind in the context of incorporation of the UNCRC. For example, the unique Scottish system of Children’s Hearings removes children in need of protection, guidance, treatment or control from the court system. This system places the welfare of children at the heart of formal decisions being taken about children. It means that in many cases important decisions in relation to children are taken not by the courts, but by a Children’s Hearing. In many respects, this is a successful embodiment of the rights enshrined in the UNCRC. So the method of incorporation will need to be mindful of the unique judicial context in Scotland, where rights under the UNCRC will often have to be applied, in the first instance, by a Children’s Hearing.
The constitutional setting also raises particular issues in Scotland. These are discussed below but they concern the operation of the Scotland Act 1998 and the HRA and how these Acts would interact with the Bill. There are areas covered by the UNCRC where the Parliament’s ability to legislate will be restricted and it will also be important to consider how to provide as much clarity as possible to rights holders and duty bearers as it is they who will, in the first instance, have to navigate the interaction between the rights set out in the UNCRC and existing legislation, and also, in some circumstances, to determine whether the rights at issue relate to reserved or devolved matters under the Scotland Act 1998.
The framework for incorporation
Whichever method of incorporation is taken, the law will need to set out a framework of requirements on public authorities and the courts.
The HRA provides such a framework as regards the ECHR. The HRA sets out a number of different mechanisms by which the rights and freedoms set out in the ECHR are given further effect in domestic law.
The HRA includes mechanisms designed to promote the compatibility of legislation with the ECHR. Section 19 of the HRA requires a Minister of the Crown to make a statement as to the Bill’s compatibility with the ECHR when introducing a Bill at Westminster. The Scotland Act 1998 makes provision for a similar assessment of compatibility (through the requirement to certify that a Bill is within legislative competence) to be made when a Bill is introduced into the Parliament.
Section 3 requires that legislation must be read and given effect to in a way which is compatible with the ECHR, so far as it is possible to do so. Where a court determines that a provision in primary legislation is incompatible with the ECHR, section 4 provides that the court may make a declaration of incompatibility. A declaration of incompatibility does not, however, mean that the primary legislation is unlawful or affect its validity. The legislation remains in effect, and Ministers can consider how to respond to the declaration.
The HRA goes on to impose duties on public authorities as regards the ECHR. The aim of imposing duties on public authorities is to ensure that the ECHR is worked into policy and practice and that ECHR rights can be enforced in the courts. Section 6 of the HRA makes it unlawful for a public authority to act in a way which is incompatible with the ECHR. The First Minister’s Advisory Group on Human Rights Leadership calls this “a duty to comply”. This duty to act compatibly with the ECHR applies to courts and tribunals and to “any person certain of whose functions are functions of a public nature”.
The HRA also makes provision about how breaches of the HRA may be raised in the domestic courts and provides for a remedial order procedure, which can be followed to address any legislative incompatibility. The Convention Rights (Compliance) (Scotland) Act 2001 makes additional provision about how Scottish Ministers can take action to rectify legislation which is or may be incompatible with the ECHR.
Taken together, these various mechanisms incorporate the ECHR into the domestic law of the UK. To give practical effect to the rights secured in the Bill proposed by this consultation, we envisage that it would be appropriate to have a similar framework. Such a framework has also been suggested in the context of the UNCRC by the model proposed by the advisory group convened by Together and the Commissioner for Children and Young People in Scotland and in a Bill on Children’s Rights introduced to the House of Lords in 2009-10.
The duties on public authorities (including the Scottish Government)
To achieve incorporation, the Bill would have to make clear to rights holders what their rights are and also make clear to public authorities their duties under the Bill. The Bill would also require to provide for what is to happen if these requirements are breached.
There are broadly two approaches potentially which could be taken to imposing duties on public authorities when exercising their functions in relation to human rights. The first would be that used in section 6 of the HRA, where it is made unlawful for a public authority to “act in a way which is incompatible” with rights in the ECHR. There is a similar requirement in EU law to act compatibly with the rights granted by EU law.
The second approach would involve placing a duty on an authority to pay “due regard” to human rights requirements when exercising their functions, and to reflect that consideration in their decisions. These duties oblige public authorities to show that they have considered people’s rights when they make relevant decisions. Other formulations of this type of duty are also seen in legislation, for example a duty to have regard, a duty to consider or a duty to take into account in relation to principles or aims, but not in relation to legal obligations from international treaties.
The First Minister’s Advisory Group on Human Rights Leadership consider these two approaches in their recommendations. They illustrate the difference between the two approaches by explaining that a “duty to comply” is:
“a duty to provide an outcome which is consistent with the rights of the individual, and [unlike an obligation to give due regard] not simply a duty to provide a process which takes into account the rights of the individual.”
Obligations to have “due regard” have important applications in many areas but we do not consider, at least in the long term, that a standalone duty to have due regard to the UNCRC rights would be the most effective means of delivering the improvement in outcomes for children that we want to see.
We discuss in this consultation the different approaches to incorporating the UNCRC rights and would intend, whichever approach is taken, to include a “duty to comply” with those rights.
1. Are there particular elements of the framework based on the HRA as described here, that should be included in the model for incorporation of the UNCRC in domestic law? Please explain your views.
2. Are there any other aspects that should be included in the framework? Please explain your views.
3. Do you agree that the framework for incorporation should include a “duty to comply” with the UNCRC rights? Please explain your views.
The options for incorporation
Incorporating the UNCRC directly into domestic law
Direct incorporation is the shorthand for a method of incorporation that takes the content of an international convention and gives it effect in domestic law - essentially by lifting the wording from the international convention and putting it into domestic law. Broadly this is the approach taken by the HRA with regards to the ECHR. That Act defines “Convention rights” as being those in a schedule to the Act and most of the Articles of the ECHR are reproduced in that schedule.
Direct incorporation means that rights holders can simply refer to the text of the international convention to identify the rights which form part of domestic law. Under this approach, the legislation would (so far as permissible in relation to devolved matters) set out a framework of duties and requirements which would apply to the rights as set out in the UNCRC and optional protocols and would introduce remedies in the domestic courts for enforcement of those rights. In this context there is no difference in the wording between the “domestic version” of a right and the international version.
Taking this direct incorporation approach does however mean that the rights, which were drafted for inclusion in an international treaty and intended to impose obligations on states, are not specifically tailored for application by rights holders, duty bearers and courts in our legal system. Because the rights are framed in general terms, and there is no body of jurisprudence by courts which explain the detailed meaning of the UNCRC rights, this could make interpretation of the law less certain for rights holders and duty bearers, and could, paradoxically, mean that the rights would be considered to be less substantive or enforceable than if they had been framed explicitly for application in our legal system.
As we note elsewhere in this paper, this model ultimately gives the courts the power to decide whether or not particular rights are self-executing and to decide authoritatively in a particular case on the correct interpretation of the rights and duties set out in the UNCRC. Because the rights are framed in general terms, it may not always be easy to predict the conclusion which the courts would reach in any particular case, and this approach can accordingly lead to greater uncertainty for rights holders and duty bearers. And because application of the rights in question may require a balancing of competing policy objectives and resources, there may be cases where Parliament, which is democratically accountable, would be better placed than the courts to give these rights concrete expression.
Direct incorporation of the UNCRC in a Scottish Context
A model of direct incorporation has been suggested for Scotland by an advisory group convened by the Commissioner for Children and Young People in Scotland and Together (the Scottish Alliance for Children’s Rights). This model would incorporate the UNCRC into Scots law directly and without any adjustment.
We made a commitment to include the proposal from this group as part of this consultation and we welcome respondents’ views on the proposal. The general issues arising in the context of direct incorporation detailed above are equally applicable to this proposal.
Which rights should be directly incorporated?
It will be necessary for the Bill to identify the rights which are to be the subject of the legislation. The “UNCRC requirements” for the purpose of Part 1 of the CYP Act 2014 are the rights and obligations set out in Part 1 of the UNCRC (Articles 1-42) plus Articles 1 to 6(1) and 7 of the first optional protocol and Articles 1 to 10 of the second optional protocol. However, there are some further issues which would need to be considered in the context of the proposed Bill.
Interpretation of rights
As discussed above, how the rights in the UNCRC and the optional protocols, which are framed in general terms, are to be interpreted and applied in Scotland will need to be considered.
The HRA in section 2 addresses this issue by placing a requirement on a court or tribunal which is determining a question in connection with an ECHR right, to take into account any judgment, decision, declaration or advisory opinion of the European Court of Human Rights, particular opinions and decisions of the European Commission of Human Rights, or particular decisions of the Committee of Ministers, so far as these are relevant to the proceedings before it.
In the case of the UNCRC, however, there is no body of authoritative international jurisprudence to which a Scottish court could refer when a UNCRC right requires consideration because there is no international judicial body established under the UNCRC equivalent to the European Court of Human Rights. Under the new communications procedure in the third optional protocol which allows for complaints to be submitted to the UN Committee on the Rights of the Child, a body of decisions is beginning to develop, which may start to provide assistance with interpretation of the UNCRC. However, the UK has not signed optional protocol 3 under which the communications procedure is established so consideration would be needed as to whether the domestic courts should refer to decisions issued by a non-judicial body under a procedure to which the UK is not a party.
Other possible aids to interpretation of the UNCRC include the General Comments of the UN Committee on the Rights of the Child. The Committee is a body of independent experts nominated and elected by states which are parties to the UNCRC. Its purpose is to monitor implementation of the UNCRC at the state level and the General Comments are issued periodically to help states with their implementation of the UNCRC. General Comments provide authoritative guidance, but, unlike the UNCRC itself, are not themselves legally binding in international law. They are, moreover, intended to be general in nature, and, accordingly, while they may influence the interpretation of the treaty, cannot drive a conclusion that an Article has been breached in a particular case.
Further assistance might also be obtained from the Observations of the Committee on reports made under the UNCRC regime in response to reports made by States which are party to the UNCRC. However, consideration would require to be given to the status to be given by domestic courts to those Observations. The Committee is not a judicial body. Its function is to examine the progress made by States Parties in achieving the realization of the obligations undertaken in the UNCRC. Its Observations are not themselves legally binding in international law.
The courts might also obtain assistance in interpreting UNCRC rights from decisions of courts in other countries, where the UNCRC is part of the domestic law applied by those courts – just as they take assistance from the decisions of courts in other jurisdictions in other areas of the law. And where a right in the UNCRC overlaps with other international human rights – as, for example, the right to freedom of expression or the right to freedom of thought, conscience and religion - the courts may obtain assistance from decisions made under other international treaty regimes, including the ECHR.
4. What status, if any, do you think General Comments by the UN Committee on the Rights of the Child and Observations of the Committee on reports made by States which are party to the UNCRC should be given in our domestic law?
5. To what extent do you think other possible aids would provide assistance to the courts in interpreting the UNCRC in domestic law?
Which rights can and should be enforced directly by the Scottish courts?
We have explained above how, in legal systems which regard treaty rights as part of their law automatically, the courts may have to decide whether or not any particular treaty right is self-executing – i.e. can be enforced directly by the courts without the need for detailed legislation. We have described how the Belgian courts have held that some of the UNCRC rights are not self-executing. However, even though a right may not be self-executing, so that it cannot be directly enforced without implementing legislation, it may still be capable of being relevant to the way that judges interpret and apply the law.
If a model of direct incorporation is adopted, we will need to decide how to deal with this question, and in particular whether the Bill should seek to differentiate between rights which can be regarded as self-executing and those which are not, or whether we should leave it to the courts to develop doctrines for dealing with this issue on a case by case basis.
Rights and reserved functions
In assessing which Articles of the UNCRC and optional protocols can be included in the legislation, it will be necessary to comply with the limits of the Parliament’s competence to legislate. Section 29 of the Scotland Act 1998 defines the legislative competence of the Parliament. The Parliament’s legislative competence is limited by the UK Parliament’s reserved competence over certain subject matters (such as defence and foreign affairs) and the protection of particular statutes (e.g. the HRA, the European Communities Act 1972 or the European Union (Withdrawal) Act 2018) against modification. Section 29 also provides that the Parliament cannot legislate in a way that would be incompatible with ECHR (i.e. the rights protected by the HRA) or, at present, EU law.
Some aspects of the UNCRC and the two optional protocols relate to matters which are reserved to the UK Parliament, such as nationality, asylum and immigration, international relations, misuse of drugs and at least some aspects of armed conflict. Other Articles of the UNCRC and the two optional protocols could apply both in a reserved and a devolved context, such as social security. The Scottish Parliament would only be able to legislate in relation to reserved areas, if an order under section 30 of the Scotland Act 1998 were to be passed to devolve those areas to the Parliament.
In the absence of a section 30 Order or similar provision extending competence, because the Bill would have to be within the legislative competence of the Parliament, it will not be possible to include certain Articles or aspects of certain Articles of the UNCRC and the optional protocols in the Bill. It would also be important to consider how far clarity can and should be given to rights holders and duty bearers as to their respective rights and responsibilities where UNCRC rights could apply both in a reserved and a devolved context.
We are keen to minimise the need for those affected to have to judge on their own, in individual cases, whether the requirements in the Bill in respect of the UNCRC apply to particular functions they are exercising. This will be particularly acute for duty bearers in public services which deal both with reserved and devolved matters, for example, police officers and local government officers.
These are issues which such public authorities already have to keep in mind when operating under devolved law. However, one issue which will need to be considered is the extent to which clarity can and should be provided in the terms of the legislation itself; and the extent to which provision can and should be made for guidance, applicable in different sectors to assist rights holders and duty bearers in understanding the legal context.
Incorporation by transposing the UNCRC for the Scottish context
Alternatively, an international convention may be incorporated into domestic law by the rights enshrined in the convention being “transposed” into domestic law.
This has been the method of implementing the UNCRC in Scotland to date. For example, our domestic law has given effect in a number of pieces of legislation to Article 12 of the UNCRC. Article 12 requires states to ”assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child”. Section 27 of the Children’s Hearings (Scotland) Act 2011, for example, places requirements on a children’s hearing or sheriff when they are making a decision under that Act about a matter relating to a child, to give the child an opportunity to indicate whether the child wishes to express views, to give the child an opportunity to express those views and to have regard to the child’s views.
This is also the method by which some EU Law is currently implemented in Scotland. EU directives which place requirements on the UK are given effect in our domestic law by legislation, which may be made by the Parliament or by Scottish Ministers, with Parliament’s agreement. The EU law requirements are given effect in a way which is compatible with existing domestic law and which is explicitly tailored to the Scottish context. EU directives may also be implemented by an Act of the UK Parliament or by an order made by UK Ministers.
For instance, one of the ways in which EU Directive 2004/38/EC on the rights of citizens of the EU and their family members to move and reside freely in the territory of EU member states was implemented in Scotland, as it relates to student support, was by detailed regulations set out in the Education (Graduate Endowment, Student Fees and Support) (Scotland) Regulations.
Implementation in this way gives effect to the international rights in the Scottish context, ensuring that rights which are set out in an international treaty and which are expressed in general terms and are directed towards actions to be taken by the state, are given clear effect at the domestic level after due consideration by the democratically accountable government and parliament.
There are options as to how transposition of the UNCRC could be achieved:
- a suite of Scottish children’s rights could be developed and the Bill could apply a framework of duties and requirements to those rights
- specific changes could be made to domestic legislation to ensure that the statute book complies as a whole with the UNCRC
The latter is the current approach to the implementation of the UNCRC, which we have described above. Regardless of the approach which is taken to incorporation, detailed schemes of legislation which give effect to UNCRC rights will continue to be necessary, and the Government and the Parliament will require to keep the law under review. We have concluded that, in order to give greater assurance that UNCRC rights will be respected in all circumstances, we should go further and either directly incorporate those rights, in the manner we have described above, or transpose those rights by enacting a suite of Scottish children’s rights.
While they do not directly consider the approach to the UNCRC, the First Minister’s Advisory Group on Human Rights Leadership rejects a simple “cut-and-paste” approach to incorporation and recognises the need to ensure legislation works in a Scottish context. They propose a participative process by which people in Scotland are consulted to help define their rights based on the international conventions. They suggest that this will garner greater ownership of people’s rights.
The Group’s recommendations also noted that in some circumstances, it may be preferable to go above and beyond the rights set out in the UN treaties and provide additional protection that better serves the public interest. These recommendations point to an approach which develops a bespoke set of domestic rights rooted in the UNCRC.
This approach in the Scottish context could also help to ensure that the articulation of the rights respects the devolution settlement. Where a specific Article of the UNCRC relates to a reserved matter it would be carved out from the Bill. Similarly, where Articles span both reserved and devolved areas, provision could be made with a view to limiting the application of the Bill to devolved areas.
This approach would provide greater legal clarity for rights holders and duty bearers about the UNCRC rights which have been incorporated into domestic law and what duty bearers are required to do with regard to those rights. The Parliament would be responsible for specifying and implementing the rights and obligations, although these would, as with any domestic legislation, be subject to judicial interpretation.
Perhaps the most significant question with regard to this method of incorporation is whether transposition of the rights of the UNCRC into domestic law, by way of the development of a suite of Scottish children’s rights, would be preferable to relying on the existing wording of the UNCRC. As noted, the First Minister’s Advisory Group on Human Rights Leadership suggest that an approach that fits with the Scottish context is preferable for other human rights conventions. This approach would also allow for protection to go above and beyond the rights provided in the UNCRC.
It would mean that each Article would need to be considered in light of the Scottish context and drafted both to fit that context but also to provide at least the level of protection that the UNCRC does. In their recommendations the First Minister’s Advisory Group on Human Rights Leadership were clear that the purpose of this form of transposition was for the rights to be designed and owned by the people of Scotland and civic society.
If this method were to be widely supported, we would welcome views on what would be the best way to engage people in that process while meeting our ambition to pass the Bill before the end of this parliamentary session.
Statutory Human Rights Framework for Scotland
The principal recommendation of the First Minister’s Advisory Group on Human Rights Leadership 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 First Minister’s Advisory Group on Human Rights Leadership proposed that such an Act should set out for the first time and in one place the rights belonging to everyone in Scotland. The group proposed that the Act could be legislated for at the commencement of the next term 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 Parliament elections in 2021. As a result we are minded to push ahead with the UNCRC incorporation now, even though we will have to ensure that the approach taken here is able to dovetail with the First Minister’s Advisory Group on Human Rights Leadership wider approach. The First Minister’s Advisory Group on Human Rights Leadership explicitly recognised in its report that longer term ambitions to incorporate all human rights treaties should not hold up action to incorporate the UNCRC.
6. Do you agree that it is best to push forward now with incorporation of the UNCRC before the development of a Statutory Human Rights Framework for Scotland? Please explain your views.
7. We would welcome your views on the model presented by the advisory group convened by the Commissioner for Children and Young People in Scotland and Together (the Scottish Alliance for Children’s Rights).
8. How should the issue of whether particular UNCRC rights are self-executing be dealt with?
9. How could clarity be provided to rights holders and duty bearers under a direct incorporation approach, given the interaction with the Scotland Act 1998?
10. Do you think we are right to reject incorporating the UNCRC solely by making specific changes to domestic legislation? Please explain your views.
11. If the transposition model was followed here, how would we best enable people to participate in the time available?
12. What is your preferred model for incorporating the UNCRC into domestic law? Please explain your views.