Theme 3: Enabling Compatibility and Redress
36. The consultation document suggests that 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. A scheme of remedies should 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.
Challenging Public Bodies and Seeking Financial Compensation
37. The Group discussed the issues raised in Theme 3 of the consultation document. A minute of these discussions can be found in Annex L.
- The majority of members of the Group considered that the Scottish Bill should include a scheme which provides for an effective remedy for any infringement of individual rights.
38. Some members of the Group proposed that consideration should be given to:
- the creation of child-friendly complaints mechanisms which can operate alongside more formal methods of redress. This should include the consideration of mechanisms that enable children to have a remedy as quickly as possible if it is determined that a UNCRC right has been breached.
- measures around redress providing for accountability at all levels of public authorities, including the Scottish Ministers.
- how the method for incorporating the UNCRC into Scots law might provide for both the payment of financial compensation and measures to address wider systemic failures and prevent future violations of rights.
- a requirement for public authorities to undertake an audit on their compliance with the UNCRC. Alternatively, to ensure consistency of approach, such an audit could be undertaken at a national level looking across relevant public services.
Access to Remedies
39. The Group considered how best to ensure that accessing remedies in the case of a breach of rights was clear and accessible for children and young people. A minute of the Group’s discussions can be found in Annex L.
- The majority of members of the Group considered that children and young people should be effectively supported throughout the process of legal redress. This could include access to advocacy and mediation.
Order of Precedence where Secondary Legislation is in Conflict with UNCRC Rights
40. The Group also considered how to address those instances where the UNCRC rights might be in conflict with existing secondary legislation. A minute of the Group’s discussion can be found in Annex L.
41. Some members of the Group proposed that consideration should be given to the possible need to re-evaluate secondary legislation and to conduct an audit of where secondary legislation may be in conflict with the UNCRC.
Acts of the Scottish Parliament – Statements of Compatibility Challenging Acts of the Scottish Parliament and Interpretation of Acts
42. The Group considered mechanisms for challenging Acts of the Scottish Parliament and a potential requirement for a statement of compatibility with children’s rights to accompany legislation on introduction to the Scottish Parliament. The Group also considered whether the Scottish Bill should contain provisions requiring an Act of the Scottish Parliament to be interpreted and applied, as far as possible, in a manner which is compatible with the UNCRC. A minute of the Group’s discussion can be found in Annex L.
43. Group members proposed that the Scottish Government should consider whether:
- a Statement of Compatibility should be laid alongside a CRWIA on the introduction of a Bill.
- whether courts should have the opportunity to “strike down” legislation which does not comply with the UNCRC.
Standing to Take Proceedings
44. The Group considered whether any special test for standing to bring a case under the Scottish Bill would be required. A minute of the Group’s discussion can be found in Annex L.
45. Some members of the Group proposed that consideration should be given to the inclusion within the Scottish Bill of a provision allowing the Children’s Commissioner to bring forward cases on behalf of children and young people, as well as arrangements for standing by groups of people.