Executive Summary

Background

The United Nations Convention on the Rights of the Child (UNCRC) is an international treaty setting out civil, political, economic, social and cultural rights that children and young people are entitled to.

The rights in the UNCRC apply to every child and young person whatever their ethnicity, sex, religion, language, abilities or any other status, whatever they think or say, and whatever their family background. The rights include:

• The right to be heard, and have their views taken seriously in all matters affecting them.

• The right to the best possible health care.

• The right to benefit from social security.

• The right to adequate food and housing.

• The right to an education.

It is the most widely ratified treaty in the world; it has been ratified by 196 State Parties (countries). State Parties that have ratified the treaty are required to comply with the treaty articles, according to their own domestic law and policy.

The UK Government has also ratified two out of three optional protocols to the UNCRC. The first on the involvement of children in armed conflict, and the second optional protocol on the sale of children, child prostitution and child pornography.

There have been calls for the direct incorporation of the UNCRC since it was ratified by the UK in 1991, but there has also been over 10 years of campaigning by children, young people and wider civil society to incorporate the UNCRC in Scotland.

The Bill

The United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill ('the Bill') was introduced in the Scottish Parliament by the Deputy First Minister and Cabinet Secretary for Education and Skills John Swinney MSP, on 1 September 2020.

The main purpose of the Bill is to incorporate the UNCRC and the two optional protocols into Scottish domestic law. The aim is to make children's rights real and to achieve a culture of everyday accountability for children's rights across public services in Scotland.

The Bill will mean that public authorities, including Scottish Ministers, will be legally obliged to respect children's rights, and that rights-holders will be able to challenge public authorities in the courts for breaches of their rights.

The Bill includes provisions to:

• Incorporate the UNCRC into Scots law so far as possible within the Scottish Parliament's powers. The incorporated provisions are defined in the schedule of the Bill as the 'UNCRC requirements'.

• Make it unlawful for public authorities to act in a way which is incompatible with UNCRC requirements.

• Give children, young people, and their representatives the power to go to court to enforce their rights.

• Give the Children's Commissioner power to take legal action in relation to children's rights.

• Require Scottish Ministers to make a Children's Rights Scheme setting out arrangements for them to comply with the UNCRC requirements, to be reviewed and reported on annually.

• Require listed public authorities to report on their compliance with the UNCRC requirements every three years; this replaces an existing duty in the Children and Young People (Scotland) Act 2014.

• Place a legal duty on Scottish Ministers to carry out and publish a child rights and wellbeing impact assessment on an all Scottish Parliament bills, and most secondary legislation.

• Place a legal duty on a member of the Scottish Government in charge of a bill to make a written statement on the bill's compatibility with UNCRC requirements when the bill is introduced in the Scottish Parliament.

• Require new and old legislation to be read wherever possible in a way that is compatible with the UNCRC requirements; where this is not possible:

  • courts will be able to 'strike down' old incompatible legislation (being legislation which pre-dates the Bill), meaning that it no longer forms part of Scots law; or,

  • make a declaration that new legislation (being legislation which post-dates the Bill) is incompatible with the UNCRC.

• Set up court procedures to address questions about the compatibility of legislation or public bodies' actions with the UNCRC requirements.

• Enable the Scottish Government to change the law, by regulation, to cure incompatibilities with the UNCRC requirements.

The approach taken in the Bill is similar to the framework set out in the Human Rights Act 1998 and the Scotland Act 1998. However, there are some important differences, including in relation to the approach to legislation which is found incompatible with the UNCRC requirements.

The Scottish Government's consultation on UNCRC incorporation showed strong support for UNCRC incorporation, and for the method of ‘direct incorporation’, where the UNCRC is placed into Scots law, as opposed to developing a separate suite of Scottish children's rights or making changes to domestic legislation, which is the current practice.