Taking a children's human rights approach: guidance

3. Introducing the UNCRC (Incorporation) (Scotland) Bill

3.1 Ambition for children’s rights in Scotland

The Scottish Government is committed to Scotland being the best place in the world for a child to grow up. The National Outcome for children and young people is that children grow up loved, safe and respected, so that they reach their full potential. A central part of our vision is the respect for, protection of and fulfilment of children’s human rights. These include the right to be treated fairly, to be heard and to be as healthy as possible.

Our vision is a Scotland where children’s rights are embedded in all aspects of society. A Scotland where policy, law and decision-making take account of children’s rights and where all children and young people have a voice and are empowered to be human rights defenders.

All individuals and organisations in Scotland can help children and young people to enjoy their rights and fulfil the ambition of making Scotland the best place to grow up.

3.2 Children’s rights in existing Scottish legislation and policy

Scotland has a strong record in implementing the rights of children by taking steps to respect, protect, and fulfil children’s rights within law, policy, and practice. The UNCRC Bill builds upon a proud tradition of respecting children’s rights in Scotland that predates even the adoption of the UNCRC by the UN General Assembly in 1989, such as the pioneering and unique children’s hearings system, which became operational in 1971.

There are already a number of pieces of Scottish legislation which implement the UNCRC in Scots law, such as the Children (Scotland) Act 1995 and Children (Scotland) Act 2020, which provide a major part of the legal framework for child welfare and protection in Scotland .

Specific legislation and policy which give effect to the rights and obligations within the UNCRC in Scotland include the Children and Young People (Scotland) Act 2014 (CYP Act) and ‘Getting it Right for Every Child’ (GIRFEC); the national approach in Scotland to improving outcomes and supporting the wellbeing of children and young people by offering the right help at the right time from the right people.The Promise is clear that Scotland’s approach to care must ensure children’s rights are upheld in all decisions and support is provided for families. Therefore, public authorities and workforces have strong foundations to build on when developing or improving their children’s human rights approach.

Part 1 of the Children and Young People (Scotland) Act 2014 embeds UNCRC rights in Scottish legislation and places children’s rights duties on Scottish Ministers and public authorities.

Part 1 (section 2) of the 2014 Act places a duty on a range of listed public bodies (including all local authorities and relevant health boards) to report, as soon as practicable after the end of each three-year period, on the steps they have taken to better secure, or give further effect to, the UNCRC requirements.

The review criteria of Part 3 of the Children and Young People (Scotland) Act 2014 Statutory Guidance (Children’s Services Planning) requires the local authority and health board (working in partnership with Children’s Services Planning Partners) to use children’s rights to inform the structural, procedural and outcome framework of their plan, making full use of children, young people, and families’ suggestions to convey a shared sense of ongoing engagement and ownership.

3.3 UNCRC (Incorporation)(Scotland) Bill

Since the ratification of the United Nations Convention on the Rights of the Child by the UK Government in 1991, the UK has been under obligation in international law to comply with it, but children and young people across the UK have not been able to go to court to enforce their rights directly.

On 1 September 2020, the UNCRC Bill was introduced to the Scottish Parliament. The purpose of the Bill was to bring the UNCRC into Scots law and to put in place measures to achieve a culture of everyday accountability for children’s rights across public services in Scotland. The UNCRC Bill would make Scotland the first country in the UK, and the first devolved nation in the world, to directly incorporate the UNCRC into domestic law. It would make it unlawful for public authorities to act incompatibly with the incorporated UNCRC requirements when acting under powers conferred by or under Acts of the Scottish Parliament or common law. Giving children, young people and their representatives the power to go to court to enforce their rights.

The Bill was originally passed by the Scottish Parliament in March 2021 but, following a referral by UK Law Officers of certain of the Bill provisions to the UK Supreme Court, each of the referred provisions was judged to be outwith the legislative competence of the Scottish Parliament.

Following that judgment, the Bill was amended and brought back to Parliament using the ‘Reconsideration Stage’.

The amended Bill was unanimously approved by the Scottish Parliament on 7 December 2023 and we currently await Royal Assent.

“Incorporation will mean protections that need to be guaranteed and safety for children and young people. It is easier to look at a written document that says that these are the things I should have, rather than kind of guessing what you think you should have. This is empowering for me as a young person”.

Young person’s response to Scottish Government Consultation on UNCRC incorporation

3.4 What does the UNCRC Bill aim to do?

The Bill, as approved by the Scottish Parliament on 7 December 2023, says that:

• Public authorities must not, in carrying out relevant functions, act incompatibly with the UNCRC requirements as set out in the UNCRC Bill
• Children, young people, and their representatives will be able to use the courts to ensure that their rights are recognised
• Courts will have powers to take action by strike down or incompatibility declarators if legislation originating from the Scottish Parliament is incompatible with the UNCRC requirements
• Legislation originating from the Scottish Parliament will have to be read in a way which is compatible with the UNCRC requirements wherever possible.
• The Bill contains remedial powers which would enable any incompatibilities or potential incompatibilities, to be remedied as considered necessary by the Scottish Ministers
• The Children and Young People’s Commissioner Scotland and Scottish Human Rights Commission will have powers to take legal action to protect children’s rights
• The Scottish Government will have to publish a Children’s Rights Scheme to show how it is fulfilling its duties in the Bill and explain its future plans to progress children’s rights
• The Scottish Government will have to review how the Children’s Rights Scheme is working each year
• The Scottish Parliament will have to publish an annual report on the actions taken and planned by the Parliament and its committees to secure better or further effect of the rights of children
• The Scottish Government will have to carry out a child rights and wellbeing impact assessment in respect of new primary and secondary legislation from the Scottish Parliament and certain decisions of a strategic nature that relate to the rights and wellbeing of children
• Other authorities listed in the Bill will have to report every three years on what they are doing to ensure compliance with the compatibility duty and what steps they have taken to secure better or further effect to the rights of children, during the reporting period.

Under section 2 of the Children and Young People (Scotland) Act 2014, listed public authorities already have a duty to report what steps they have taken to secure better or further effect to the rights of children. The 2014 legislation is non-prescriptive on the style of the report, provided public authorities can evidence the steps they have taken during the reporting cycle to secure better or further effect within their areas of responsibility of the UNCRC requirements.

The current reporting duty under the 2014 Act would be replaced by section 15 of the UNCRC Bill.

3.5 UNCRC Implementation Programme and support for public authorities

The cultural change required to ensure that children’s rights are fully and progressively realised in practice starts with those delivering public functions for the people of Scotland. The Scottish Government has developed a three year UNCRC action plan running from April 2021 to March 2024 to ensure that children’s rights are respected, protected and fulfilled in Scotland.

The programme priorities have been shaped by listening to children and young people and their families, public bodies, third sector organisations and academics. It aims to deliver change in all aspects of public life, supporting full realisation of all children’s rights in practice.

To ensure that public services are appropriately supported in delivering the step-change in respecting, protecting and fulfilling children’s rights, the Scottish Government will continue to work collaboratively with public authorities and third sector partners to ensure that future guidance on the UNCRC is accessible and best meets the needs of duty bearers and the rights of the children and young people they serve.

The Children’s Rights Unit is working in partnership with the Embedding in Public Services Group and Guidance Subgroup to deliver a package of materials to support public authorities to deliver a children’s human rights approach.