Theme 3: Enabling compatibility and redress
The goal of incorporation is not just to set out clearly what children’s rights are but to create mechanisms which seek to ensure that those rights will be complied with and can be enforced. We seek views here on the approach which should be taken to actions which are alleged to infringe on those rights.
Certification of Scottish Parliament Bills
At present as part of their compliance with the CYP Act 2014 Scottish Ministers carry out a Children’s Rights and Wellbeing Impact Assessment (CRWIA) when they develop new legislation. These assessments help Scottish Ministers consider how to advance the rights of children in Scotland; and how to protect and promote the wellbeing of children and young people. In some cases the preparatory work in the development of legislation determines that a full impact assessment is not required. We would intend to retain this practice whatever approach is taken to incorporation.
One suggested addition to this process would be to require a statement of compliance relating to any Bill introduced in the Parliament. There is a precedent for requiring statements of compliance under the Scotland Act 1998. A person introducing a Bill must make a statement on or before introduction of the Bill that it is within the legislative competence of the Parliament. This includes the consideration of whether the Bill is compatible with the rights secured by the HRA and by EU law. The majority of Bills are government Bills and, as a result, the Scottish Government must satisfy itself prior to introduction of any Bill that it complies with ECHR and with the fundamental rights protected by EU law (as well as the other tests of legislative competence).
Ultimately, the question of whether legislation does comply with ECHR rights or with EU law can only be authoritatively determined by the courts, but a requirement to give a certificate of compliance ensures that Government addresses, in advance, the question of whether proposed legislation is compatible with human rights. It might be possible to require any person introducing a Bill in the Parliament to declare that it is compatible with the rights in the UNCRC Bill - though consideration would need to be given to how this could and should be done.
17. Do you agree that any legislation to be introduced in the Parliament should be accompanied by a statement of compatibility with children’s rights? Please explain your views.
Remedies and Redress
The ultimate goal of incorporating the UNCRC into domestic law is to improve outcomes for children and young people in Scotland. That goal will not be met simply by an increase in the amount of litigation relating to children’s rights. It will happen through our public bodies working with and listening to children and young people and finding innovative and engaging ways to respect their rights.
If public authorities respect the UNCRC rights, then it would not be necessary for rights holders to resort to the courts to vindicate their rights. But the ability of rights holders to go to court to vindicate their rights is not only a basic feature of a constitutional democracy, it helps to guarantee compliance, and provides an authoritative forum for deciding whether or not rights have been complied with. The available remedies for breaches of rights set out in the Bill will be vital in securing the Bill’s effectiveness.
The scheme of remedies should accordingly provide for the ability to challenge actions by public authorities, including the Scottish Government, where children (or those acting on behalf of children) believe that their rights have been infringed by that public body.
More complex questions arise in relation to situations where children (or those acting on behalf of children) believe that their rights are infringed by a provision in legislation.
Actions to challenge the acts or omissions of public bodies
Children (and those acting on their behalf) who believe that their rights have been infringed by the acts or omissions of a public body should have the ability to challenge those public bodies.
Under the Scotland Act 1998 (for the Scottish Government) and HRA (for the Scottish Government and all other public bodies), an alleged breach of ECHR rights can be raised during any court proceedings. Such a challenge may be brought directly by way of an application for judicial review of the public body, or in other proceedings (for example in proceedings before a Children’s Hearing or as part of other civil or criminal proceedings), where the issue relevantly arises.
For challenges under the HRA (but not the Scotland Act 1998), the public body has a defence to the challenge if, as a result of provisions in an Act of the UK Parliament, the public body could not have acted differently. In such circumstances, the courts may make a declarator that the legislation is incompatible with Convention rights, which may result in the law being amended to reflect those rights, but would not affect the decision in the particular case.
Where a challenge is successful, it is for the court to decide what remedy to grant in order to address the breach of ECHR rights. The possible orders include an order declaring that the applicant’s rights have been infringed, an order setting aside a decision of the public authority, and in some cases an order requiring the public authority to pay financial compensation for the breach of rights.
In the context of breach of ECHR rights, which provides for financial compensation where that is necessary in order to provide “just satisfaction” for the breach of rights, the caselaw of the European Court of Human Rights makes clear that it is not always necessary to prove actual loss before “just satisfaction” damages are payable and helps to provide guidance about the appropriate levels of award in particular circumstances.
As part of the process of incorporating the UNCRC, we will need to consider how to address those instances where UNCRC rights may be in conflict with secondary legislation such as regulations and orders made by Scottish Ministers or, sometimes, local authorities. Where such a conflict arises between secondary legislation and the ECHR, the HRA resolves this conflict by requiring a public authority to act compatibly with the ECHR even if this would require the authority to act in a way which would be contrary to the requirements in the secondary legislation. If we took this same approach with respect to the UNCRC, the absence of authoritative caselaw on the UNCRC means that this would create some uncertainty in the system – public authorities could have to decide, in individual cases, whether they were required to ignore secondary legislation because of a UNCRC right. On the other hand, we are aware that there are some sources of guidance in relation to the UNCRC, including the ECHR rights where there is an overlap with those rights, and the General Comments and Observations on State reports which mitigate that uncertainty. We would welcome views on whether it would be appropriate for UNCRC rights to take precedence over provisions in secondary legislation as is the case under the HRA for ECHR rights.
We consider that with respect to challenges to the acts or omissions of public bodies, a regime generally similar to that in place under the HRA should be established in relation to the rights given effect in the Bill. However, we would welcome views on whether there should be any modifications to that regime in the context of those rights. In particular, we would welcome views on whether the approach to awards of financial compensation should broadly follow the approach which the courts take in relation to breaches of the ECHR.
Challenges to primary legislation
More complex questions arise in relation to situations where children (or those acting on behalf of children) believe that their rights are infringed by a provision in primary legislation.
In the Scottish and UK human rights context there are currently two different models which apply to challenges to primary legislation.
(i) Under the Scotland Act 1998, section 29, a provision in an ASP is “not law” insofar as the provision is outwith the legislative competence of the Parliament – and it follows that such a provision is “not law” insofar as it is incompatible with the ECHR. That means that such a provision has no legal effect insofar as it is incompatible with the ECHR; and all public authorities, and the courts, must ignore the legislation once it has been found to be incompatible with the ECHR. The Scotland Act 1998 contains mechanisms which allow the question of whether or not a provision in an ASP is or is not law to be raised in any legal proceedings, and which enable the Law Officers to seek authoritative rulings from the courts.
(ii) Under the HRA, courts cannot hold that a provision in an Act of the UK Parliament which is incompatible with the ECHR is “not law”. Instead, the HRA, section 4, allows courts to make a declaration of incompatibility – a formal statement that the legislation is not compatible with the ECHR. If a declaration of incompatibility is made, the law may be changed – either by an Act of the UK Parliament, or by subordinate legislation made under section 10 HRA, or (if the matter is not reserved) by an ASP. Because the incompatibility does not affect the quality of the legislation as law, the legislation must still be applied by public authorities and the courts unless and until it has been changed.
Under both the Scotland Act and HRA regimes:
(i) There are strong provisions (section 3 of the HRA; section 101 of the Scotland Act 1998) requiring the courts, so far as possible, to interpret and apply legislation, and to read it narrowly, in a way which is compatible with the ECHR. This minimises the risk that the legislation itself will be found to be incompatible with the ECHR.
(ii) There are provisions which facilitate the correction of any incompatibility between legislation and the ECHR. The HRA gives the UK Government - and the Scottish Government (where the matter is not reserved) - power to do this by order; and similar and in some respects wider provision is made in relation to ASPs and other Scottish legislation by the Convention Rights Compliance (Scotland) Act 2001.
The Scotland Act 1998 also provides (section 102) that the Courts can, among other things, suspend the effect of any ruling that a provision is “not law” in order to allow the defect to be corrected.
It would not be open to the Parliament to create new limitations on its own legislative competence: that could only be done by amending provisions of the Scotland Act 1998 that the Parliament cannot modify. It follows that the Bill incorporating the UNCRC could not provide that a provision in an ASP (whether an existing ASP or a future ASP) is not law so far as it is incompatible with the UNCRC rights.
If challenges to provisions in primary legislation are to be permitted on the grounds of incompatibility with the UNCRC rights, there would accordingly need to be a bespoke set of provisions, along the lines of those in the HRA, empowering the Courts to declare that a provision in primary legislation is incompatible with the UNCRC rights. The provisions would require to be carefully considered to ensure that they are compatible with, and operate within, the legislative competence of the Parliament.
In the context of UNCRC rights which are framed in general terms, and where (by contrast with the ECHR) there are limited sources of authoritative guidance about the detailed application of those rights this approach would, in any event, provide greater certainty for duty bearers - since they would not be faced with having to decide whether or not they are required, by the UNCRC rights, to ignore a provision in an ASP. This approach would enable an authoritative ruling to be obtained from the courts as to whether or not a provision in an ASP is incompatible with the UNCRC rights, but would leave it to the democratically elected Government and Parliament to decide how to respond to that ruling.
We envisage that any Bill should include provisions equivalent to section 3 of the HRA and to section 101 of the Scotland Act 1998, requiring provisions in ASPs to be interpreted and applied, and to be read narrowly, in order to be compatible so far as possible with the UNCRC rights provided for under the Bill.
Standing to take proceedings
The HRA and the Scotland Act 1998 require someone raising a human rights challenge to be a victim of a violation of their rights in accordance with the rules which govern applications to the European Court of Human Rights.
In the UNCRC there are no directly equivalent rules. We consider that the ordinary test of standing in Scots law which applies to challenges on judicial review can apply. This uses a test of sufficient interest in the issues raised following the case of AXA General Insurance Limited v the Lord Advocate.
We envisage that provisions should be included in the Bill, similar to those in the Scotland Act 1998, to enable Law Officers to participate in and to initiate proceedings.
18. Do you agree that the Bill should contain a regime which allows right holders to challenge acts of public authorities on the ground that they are incompatible with the rights provided for in the Bill? Please explain your views.
19. Do you agree that the approach to awards of financial compensation should broadly follow the approach taken to just satisfaction damages under the HRA? Please explain your views.
20. Do you agree that the UNCRC rights should take precedence over provisions in secondary legislation as is the case under the HRA for ECHR rights? Are there any potential difficulties with this that you can see?
21. Do you agree that the Bill should contain strong provisions requiring an ASP to be interpreted and applied so far as possible in a manner which is compatible with the rights provided for in the Bill? Please explain your views.
22. Should the Bill contain a regime which would enable rulings to be obtained from the courts on the question of whether a provision in an ASP is incompatible with the rights secured in the Bill? Please explain your views.
23. Do you consider any special test for standing to bring a case under the Bill should be required? Please explain your views.