Publication - Consultation paper

Incorporating the UN Convention on the Rights of the Child into Scots Law: consultation

Published: 22 May 2019

Views sought on how best to incorporate 'gold standard' for children's rights into domestic law and improve the lives of children and young people.

35 page PDF

737.5 kB

35 page PDF

737.5 kB

Contents
Incorporating the UN Convention on the Rights of the Child into Scots Law: consultation
Footnotes

35 page PDF

737.5 kB

Footnotes

1. https://downloads.unicef.org.uk/wp-content/uploads/2010/05/UNCRC_united_nations_convention_on_the_rights_of_the_child.pdf?_ga=2.60733477.985627632.1558359430-1881143938.1535966376

2. The courts may, though, refer to and rely on the UNCRC where that is relevant to an issue which arises under domestic law, in particular: (i) when interpreting an ambiguity in legislation intended to implement the UNCRC or (ii) when considering an alleged breach of the ECHR or of the EU Charter of Fundamental Rights.

3. https://www.gov.scot/publications/progressing-human-rights-children-scotland-report-2015-2018/

4. The UN Committee on the Rights of the Child is a body of independent experts elected by states that are parties to the UNCRC and its purpose is to monitor implementation of the UNCRC at the state level. States that are parties to  the UNCRC are also obliged to submit regular reports to the Committee on how UNCRC rights are being implemented. The Committee examines each report and addresses its concerns and recommendations to the state party in the form of “Concluding Observations”.

5. https://www.gov.scot/policies/girfec/

6. https://humanrightsleadership.scot/

7. https://www.gov.scot/publications/progressing-human-rights-children-scotland-action-plan-2018-2021/

8. For example, Article 38 (3) makes provision that countries shall refrain from recruiting children under the age of 15 into their armed forces. Recruitment to the armed forces is covered by the Defence reservation in the Scotland Act.

9. For example Article 8 where some elements of a child’s identity will be affected  by devolved law (for example family law) and some will be affected by reserved law (such as a child’s nationality).

10. The courts may, however, look at international human rights treaty provisions, in order to assist with the interpretation of domestic legislation which was enacted to implement those provisions or to inform an allegation that there has been a breach of ECHR rights or rights under the EU Charter of Fundamental Rights. 

11. Lundy et al, The UN Convention on the Rights of the Child: a study of legal implementation in 12 countries, UNICEF, p. 37.  

12. Similar issues have arisen when the courts have had to consider whether an EU Directive has direct effect. 

13. See the methods for incorporation described later in this paper for more detail on these approaches.

14. Page 28 of their Recommendations - https://humanrightsleadership.scot/wp-content/uploads/2018/12/First-Ministers-Advisory-Group-on-Human-Rights-Leadership-Final-report-for-publication.pdf

15. Schedule 1 of the HRA repeats the principal Articles of the ECHR as well as some Articles of additional protocols https://www.legislation.gov.uk/ukpga/1998/42/schedule/1 

16. https://www.togetherscotland.org.uk/about-childrens-rights/monitoring-the-uncrc/incorporation-of-the-un-convention-on-the-rights-of-the-child/

17. Mathieson v. Secretary of State for Work and Pensions [2015] UKSC 47, para. 39. 

18. R (DA) v. Secretary of State for Work and Pensions [2019] UKSC 21, paras. 68-69. 

19. Article 13. 

20. Article 14. 

21. [e.g. the difference has been illustrated by Article 13 (freedom of expression) as an example of a self-executing right expressed “The child has the right...”, while Article 19 (protection from violence) is expressed as “States Parties shall take all appropriate legislative, administrative, social and educational measures…”]

22. Article 7(1). 

23. Article 22. 

24. Article 10. 

25. Article 11(2). 

26. Article 33. 

27. Article 38; Optional Protocol on the Involvement of Children in Armed Conflict. 

28. Article 26. 

29. An Order under section 30 conferring additional powers on the Parliament requires the consent of both Houses of the UK Parliament and of the Scottish Parliament itself. 

30. S.S.I. 2006/323

31. Of course, if that were the only change to the UNCRC this could also be seen as a method of direct incorporation as the text of the other Articles would not necessarily need to be changed 

32. https://www.unicef-irc.org/portfolios/general_comments/GC5_en.doc.html

33. https://www.unicef-irc.org/portfolios/general_comments/GC5_en.doc.html

34. https://www.gov.scot/publications/progressing-human-rights-children-scotland-action-plan-2018-2021/

35. An un-conference event is a participant- driven meeting, where participants are given the power to set the agenda under a designated theme. Participants will be invited to attend from across different areas of society and particular attention will be paid to engaging with those seldom heard.

36. It would also be possible to provide for a remedial order procedure, so that the Scottish Government could remedy the incompatibility, as under the Convention Rights Compliance (Scotland) Act 2001.

37. [2011] UKSC 46


Contact

Email: alexandra.devoy@gov.scot