Strengthening Children’s Rights in Scotland

24 March 2020 by Daniel McKaveney

The United Nations Convention on the Rights of the Child (‘the UNCRC’) celebrated its 30^th anniversary on 20 November 2019. On the same day, the Scottish Government announced its plans to incorporate the UNCRC into Scots law. This means that the treaty will form part of domestic law in Scotland and its provisions will be enforceable by the courts. This is the result of many years of campaigning by children’s rights groups and civil society organisations.

What is the UNCRC?

The UNCRC is the most widely ratified international human rights treaty in history. In total, 196 countries have ratified it, with the USA being the only country in the world that is yet to do so.

It is the most comprehensive statement of children’s rights that exists, covering all aspects of a child’s life. It includes civil and political rights to economic, social and cultural rights, and even includes rights such as the right to play. Four general principles guide the implementation of the treaty: freedom from discrimination (Article 2); the best interests of the child (Article 3); the right to life, survival and development (Article 6); and the right to be heard (Article 12).

It is also accompanied by 3 additional Optional Protocols. The first and second protect children in armed conflict and from sale and exploitation. The third allows children from Member States who have ratified it to present an official complaint alleging a violation of their rights before the UN Committee on the Rights of the Child, which is the official independent monitoring body of the UNCRC. This protocol was used in September of last year by 16 child climate activists to allege that the failure of their governments to tackle the climate crisis was a violation of their rights.

Like most international treaties, the UNCRC does not dictate exactly how States must implement the treaty at national level. Implementation can, and should, take a variety of forms. This includes both legal and non-legal measures to ensure the realisation of the rights at a domestic level. Article 4 states that “States Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention.” It is therefore up to individual States to decide how best to give effect to the treaty’s provisions at national level. There is no single formula that works for every country, and it is dependent on the legal, political and social context in each State, although the UN does consider that incorporation is the first step towards effectively implementing the treaty. This means that the implementation of the obligations and rights under the UNCRC has had varying levels of success across the globe.

 The UNCRC in the UK

Although the UK ratified the UNCRC in 1991, it has not incorporated it and so it is therefore non-binding. This is because the UK is a dualist state, meaning domestic legislation is required in order to give effect to an international treaty in domestic law. The UN Committee has recommended that the UK incorporate the UNCRC into its domestic law on several occasions. However, it has not done so and has no plans to do so. The UK does not normally incorporate international treaties into its domestic law. Instead, it has sought to implement the UNCRC through other legal, administrative and non-legal measures. The UK has also ratified the first two additional Optional Protocols, although not the third.

Some of the devolved administrations have taken more progressive steps towards implementing some of the UNCRC’s provisions in recent years. For example, in Wales the Rights of Children and Young Persons (Wales) Measure 2011 requires Welsh ministers to have due regard to the UNCRC when making decisions. This is a method of indirect incorporation, as it doesn’t incorporate the treaty directly into domestic law, but instead requires decision makers to consider the requirements of the UNCRC when developing policy.

Scotland has also used adopted methods of indirect incorporation. Under the Children and Young People (Scotland) Act 2014, ministers have a duty to keep under consideration whether any steps can be taken in order to better secure the requirements under the UNCRC.

Indirect measures of incorporation such as these can aid in raising awareness of treaties and help further support for more wide-reaching measures in the future.

Scotland’s Plan

The Scottish Government now plans to incorporate the UNCRC “in full and directly” into Scots law before the current parliamentary session ends next year. A bill will be laid before Parliament this year, and the Government has stated that it will take a “maximalist approach” and incorporate the rights to the maximum extent possible, using the language of the treaty. This means that the treaty will form part of domestic law and will be binding on public authorities and enforceable in the courts. It has said that this is essential in making children’s rights real and effective.

In order to inform its plan, the Scottish Government consulted on the incorporation of the treaty from May to August 2019. The consultation looked at three main themes: the different legal mechanisms for incorporating the UNCRC; embedding children’s rights in public services; and enabling compatibility and remedies. The vast majority agreed that the treaty should be directly incorporated, and as discussed this is what the Government intends to do. However, several questions still remain as to what the bill will look like.

The HRA’s influence

One of the key issues in the consultation was to what extent the bill should follow the framework of the Human Rights Act 1998, which directly incorporated the European Convention on Human Rights into UK domestic law. The HRA is seen as an effective and “tried and tested” model of directly incorporating an international treaty into domestic law in the UK. It has been successful in ensuring that human rights standards are adhered to by public bodies, and providing redress when they are not.

The majority of respondents to the consultation agreed that the bill should include framework similar to section 6 of the HRA, which prohibits public authorities from acting incompatibly with the ECHR. The bill is likely to draw on other elements of the HRA framework, such as requiring a statement of compatibility to be made when a bill is introduced to the Scottish Parliament, and enabling the courts to declare that legislation is incompatible with the treaty. Ensuring that the treaty’s provisions are enforceable in courts and that remedies are available when a violation occurs is also an important aspect of incorporating it.

These aspects of the HRA framework all drew widespread support in the consultation as provisions such as these will ensure that incorporating the treaty results in the effective realisation of rights and is not merely symbolic.

However, many respondents believe that although the HRA framework is a good starting point, the bill that incorporates the UNCRC should go further. As well as a duty to comply with the UNCRC, a duty on public authorities to have due regard to children’s rights has been proposed. This would follow the provisions of the Wales Measure described above. It was argued that this would ensure that a children’s rights-based approach was taken when making decisions and developing policy. These two duties would work hand-in-hand and ensure a “proactive and preventative” approach whilst imposing a binding duty on public duties.

Standing

One of the areas where the bill may go further than the HRA framework concerns the rules around who will be able to bring a case to enforce the rights under the UNCRC. Under section 7 of the HRA, individuals can only bring proceedings before a court if they are, or would be, a victim of a violation of the ECHR.

However, many respondents to the consultation considered that having a wider rule in the UNCRC bill would be beneficial. One proposal is the adoption of the “sufficient interest test”, which was set out by the Supreme Court in Axa v Lord Advocate [2011] UKSC 46. In this case, the Court held that an individual need not show a personal interest when bringing proceedings if they are acting in the public interest and can demonstrate that the issue directly affects the part of society that they are representing.

There is also widespread support for ensuring that the Scottish Human Rights Commission, the Equality and Human Rights Commission, and the Children and Young People’s Commissioner Scotland all have automatic standing.

This wider approach means that individuals would not have to be a victim of a breach of the UNCRC in order to bring proceedings before the courts. Instead, it would allow third parties to raise a challenge before the potential harmful effect of legislation or policy occurred, which is more desirable than waiting for a child to become a victim of a breach.

Comment

The decision to incorporate the UNCRC is a welcome step towards advancing human rights in Scotland. It comes at a time when many are worried about the protection of rights in the UK. The loss of the Charter of Fundamental Rights of the EU due to Brexit, and the Conservative party’s pledge to “update” the Human Rights Act highlight these concerns, and we have seen a general regression of human rights standards around the world in recent years.

It is therefore encouraging that Scotland aims to be a leader in the advancement of human rights. As well as incorporating the UNCRC, the Government has established a National Taskforce for Human Rights, following recommendations made by the First Minister’s Advisory Group on Human Rights in 2018. This will look at creating a new statutory human rights framework, which may involve incorporating other international human rights treaties, such as the International Covenant on Economic, Social and Cultural Rights, although this will not affect the incorporation of the UNCRC.

Incorporating the UNCRC presents several opportunities. Not only will it provide new legal protections for a group whose rights have often been ignored, it is also an important step towards creating a human rights culture, where rights are a primary consideration in all areas of policy and decision making.

Furthermore, if a wider approach to standing is taken in the bill, this may increase the opportunities to bring public interest litigation before courts. Compared to England, public interest litigation is relatively rare in Scotland, with litigants facing more barriers north of the border. This would be beneficial as public interest plays an important role in democratic society by holding decision-makers to account, developing the law and protecting the rights of vulnerable and minority groups.

However, concerns have been raised that incorporating the UNCRC will only serve to increase the amount of litigation before the courts and will not necessarily result in improving the implementation of children’s rights standards. The UNCRC has been criticised more generally for being too broad, with some believing that some of its provisions, specifically those concerning social, economic and cultural rights, are merely aspirational and should not be enforceable. Instead, the priority of States should be on securing civil and political rights. For example, the Scottish Government has been criticised as being hypocritical in its approach to children’s rights, as it only raised the age of criminal responsibility from 8 years old to 12. This is despite the UN Committee on the Rights of Child stating that the absolute minimum age should be 14.

Incorporating an international treaty into domestic law is a complex task. The road to incorporating the UNCRC into Scots law has been long, and questions still remain as to what the bill will look like and whether it will have the desired effect. What is certain is that incorporating the UNCRC is not enough on its own. Further policies, public education and significant funding to support these initiatives are all necessary in order to effect a cultural change and move towards a human rights-based approach. Only then will the rights of every child be real and effective.

Daniel McKaveney is a graduate of University of Glasgow (Law with Spanish). He is currently working at the Council of Europe in the Human Rights Education for Legal Professionals (HELP) Unit