The United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act ("the Act") was unanimously passed by the Scottish Parliament on 7 December 2023 and received Royal Assent on 16 January 2024. The main provisions of the Act came into force on 16 July 2024. The Act incorporates large parts of the United Nations Convention on the Rights of the Child ("the UNCRC") into Scots Law and requires public authorities to act compatibly with the UNCRC. It also allows children and their representatives to enforce these rights in the Scottish courts.
A long journey
The journey to bring the Act into force has faced significant hurdles, particularly as a result of a ruling of the UK Supreme Court on an earlier version of the Bill.
The Scottish Parliament passed a Bill incorporating the UNCRC in March 2021; however, the UK Government referred the Bill to the UKSC, due to concerns about whether the Scottish Parliament had the powers to legislate as it had.
As discussed in our previous blog, in October 2021, the UKSC ruled that certain provisions of the Bill were outside the Scottish Parliament's legislative competence.
Following that judgment, the Bill was significantly amended, with the Scottish Government's stated aim being to strike a balance between maximising children's rights protections, minimising the risk of legal challenges and making the law as accessible as possible.
Key changes:
- Section 6 of the Act was amended to make it clear that the duty on public authorities to act compatibly with the UNCRC applied only when they were exercising powers conferred on them by an Act of the Scottish Parliament. This means that when public authorities are performing functions conferred by an Act of the UK Parliament, they are not bound by the Act to comply with the requirements of the UNCRC.
- The duty to read and give effect to legislation in a way that is compatible with the UNCRC requirements only applies to legislation originating from the Scottish Parliament.
- Similarly, the power to issue a "strike down declarator" or an "incompatibility declarator" – can only apply to legislation originating from the Scottish Parliament.
The impact of the Act
We discussed previously how the Bill, as passed by the Scottish Parliament in March 2021, would affect central government, regulators and public bodies. You can access that webinar here. While this was recorded prior to the amendments introduced as a result of the UKSC decision, much of the content remains relevant.
Briefly, the Act provides that:
- Public authorities in Scotland must conduct their functions in accordance with UNCRC requirements. Public authorities may face legal challenges if they do not act compatibly with those requirements.
- Children, young people, and their representatives can bring proceedings, or rely on UNCRC requirements in proceedings taken against them, where a public authority has acted, or proposes to act, incompatibly with the UNCRC requirements. The Children and Young People’s Commissioner Scotland and the Scottish Commission for Human Rights also have new powers to bring legal action and to become involved in legal action raised by others where the UNCRC requirements are relevant.
- The Scottish Government and the public authorities listed in section 19 of the Act must publish regular reports on the actions they have taken to i) ensure compliance with the duty to act compatibly ii) to secure or further effect the rights of children and iii) the actions they intend to take during the next reporting period for the above purposes.
- Acts of the Scottish Parliament should be read in accordance with the UNCRC where possible. Where not possible the Act empowers courts to issue strike-down or incompatibility declarators. Courts and tribunals, other than the Supreme Court, are permitted to refer compatibility questions to higher courts.
Next Steps
Some parts of the Act came into force and were effective from 31 January 2024. These provisions enable the Scottish Government to begin to consult, formulate court rules for handling incompatibility cases and draft guidance for public authorities. The Scottish Government has already published draft guidance in respect of part 2 and part 3 of the Act.
The majority of provisions, including the implementation of the compatibility duty, came into force today on 16 July 2024.
You can follow Brodies Local Government Academy if you are interested in the possible implications of the Act going forward. We are hosting a webinar on Permanence Orders and the UNCRC on 17 September 2024 at 14:00.
