The United Nations Convention on the Rights of the Child ("UNCRC") is a treaty which sets out a number of rights which signatory states have agreed all children and young people are entitled to. The United Kingdom is a signatory state to the UNCRC.
The Scottish Government has committed to incorporating the UNCRC into Scots Law. It has set up a Working Group to consider how best to do this. The Working Group recently published a summary of views expressed by members.
Mechanism of incorporation
A key question for the Working Group has been the appropriate legal mechanism for implementing the UNCRC in Scotland.
While some members advocated inserting the provisions of the UNCRC directly into legislation ("direct incorporation" as, for example, occurred in respect of the European Convention on Human Rights in the Human Rights Act 1998), others favoured a more tailored approach. The members of the second group expressed the view that Scots law is already largely compliant with the UNCRC and, in a number of respects, goes beyond what is required by it.
The Working Group also considered the effect of the limitations on the Scottish Parliament's power under the devolution settlement on the mechanism of incorporation of the UNCRC.
Embedding Children’s Rights in Public Services
The majority of members of the Working Group supported the development of a Scottish Children’s Rights Scheme to complement existing children’s rights frameworks and to support the implementation of the UNCRC. The proposed Scheme includes measures to promote practical awareness and understanding of children’s rights, an obligation for the Scottish Government to carry out a "Child Rights and Wellbeing Impact Assessment" in respect of new policies and legislation, and provision for advocacy support for children and young people.
Enabling compatibility and redress
The Scottish Government wishes to create mechanisms to secure enforcement of UNCRC rights. The majority of members of the Working Group agreed that an effective remedy should be available to persons claiming infringement of their rights under the UNCRC. The Working Group discussed how best to ensure remedies were accessible to children and young people. Some members proposed consideration be given to allowing the Children's Commissioner to bring cases alleging infringement of the UNCRC before the courts.
While some of the differences among the members of the Working Group might appear technical, they are, nonetheless, significant.
The Scottish Government intends to bring forward a Bill to incorporate the UNCRC in the current parliamentary session. Interested parties will watch closely to see how the Scottish Government reconciles the different views expressed by members of its Working Group, as well as the range of views expressed in response to consultation. However the Scottish Government chooses to proceed, incorporation could have a very significant implications for public authorities across Scotland, and for children who interact with them.
For more information on the law relating to children and young people in Scotland, please contact Tony Convery or your usual Brodies contact.