The Scottish Government is committed to enshrining the United Nations Convention on the Rights of the Child (UNCRC) into the domestic law of Scotland. The overall aim is to ensure that all policy, law and decision-making in Scotland takes into account children’s rights and empowers children and young people to know and understand their rights – asserting and defending them where that is needed.

This commitment is great news in principle, but how it will be incorporated into the law of Scotland is a detail that has not yet been resolved. Wholesale legislative change? Or piecemeal changes to domestic legislation ? The Scottish Government have put this question – and other implementation issues – out to Consultation.

It will come as no surprise to regular readers that my preference is for the most comprehensive incorporation possible. My response supports full incorporation of the UN Convention into law by drawing on the mechanisms used to embed the European Convention of Human Rights into UK law (and the model adopted by the Equality Act 2010 in relation to the public sector equality duty). By combining the two approaches, public authorities would be explicitly prohibited from acting in a way which is contrary to the UN Convention and breaches could be challenged in the Courts.

My response to the consultation is reproduced (with some editing for readability) below.

Legal mechanisms for incorporating the UNCRC into domestic law

The Human Rights Act 1998 is a useful model on which to base incorporation. In particular, the explicit prohibition on public authorities acting in a way which is
contrary to the Convention Rights and the ability to seek legal / judicial remedies based on a breach of those rights alone are elements which should be included
within this legislation.  If the rights enshrined in the UNCRC are to be fully incorporated and meaningful, then a duty to comply is an essential element of this.

Further, the specific requirement to interpret legislation (where possible to do so) in a way which ensures compatibility should also be included.

The legislation might also benefit from the model adopted in the Equality Act 2010 of a public sector equality duty (PSED) – requiring pro-active planning to ensure
the elimination of discrimination and advancing equality of opportunity.

A public sector children’s rights duty (PSCRD?), modelled on similar lines would ensure that public authorities were pro-active in their efforts to comply with the UNCRC and to advance children’s rights in their organisational spheres of influence.

When considering how best to comply with the UNCRC, public authorities should have regard to both the General Comments by the UN Committee on the Rights of the Child and Concluding Observations of the Committee.  These are likely to be of great use in determining appropriate measures to adopt in furthering and protecting children’s rights.

In considering individual cases, the courts should also have regard to these, while at the same time recognizing that they are not judicial decisions and should not
be treated as such (e.g. by being seen as a binding authority).  Scottish Courts and Tribunals already make reference to the UNCRC in relevant cases, and draw from appropriate sources where necessary, affording each appropriate weight. It is not likely that extensive extra-judicial materials will be necessary in interpreting the UNCRC rights in individual cases.

The model (including draft Bill )presented by the advisory group convened by the Commissioner for Children and Young People in Scotland and Together (the Scottish Alliance for Children’s Rights) has much to commend it. It states the legal position clearly so that public authorities would be in little doubt as to the extent of their duties. It also allows for direct enforcement of the rights by individuals affected by a breach, building on the model first adopted in the Human Rights Act 1998.

Rights holders (i.e. children) should be supported by a children’s support service, similar to that set out in Section 31A of the Education (Additional Support for
Learning) (Scotland) Act 2004.

While the Scottish Government are right to reject incorporating the UNCRC solely by making specific changes to domestic legislation, this is not to say that action should not be taken to also make specific changes to domestic legislation – which would allow the Scottish Parliament to go further than the minimum requirements of the UNCRC.

A model where the terms of the UNCRC are adopted directly and reproduced in domestic law, accompanied by a review of domestic legislation with a view to
strengthening, promoting, protecting and furthering children’s rights beyond the minimum requirements would be a good way of ensuring that the rights are made
real, and are not allowed to stagnate.

Embedding Children’s Rights in public services

A Children’s Rights Scheme, such as the one set out in the draft Bill, would mean that everyone would know (or could find out) what specific steps the Scottish
Government were proposing to take – and would help to ensure that there was a measure of accountability in the event that those steps were ultimately not taken.

A “sunrise clause” in the legislation seems unnecessary. The UNCRC is (or should be) well known and understood by all public authorities working with children. Any deficit in that knowledge and understanding should be dealt with by awareness raising and staff training, not by a delay in incorporating the treaty.

Public legal education (PLE) should be a priority to ensure that children’s rights are properly understood and that the scheme does not become subject to unwarranted attacks – as the Human Rights Act 1998 has (on occasion). Additional measures should be taken to ensure active take up by children – and not just by parents on their behalf.

Enabling compatibility and redress

Any legislation to be introduced in the Scottish Parliament should be accompanied by a statement of compatibility with children’s rights.  This would be an important safeguard, ensuring that children’s rights remained at the forefront of people’s attention while passing legislation.

The Bill should allow right holders to challenge acts of public authorities on the ground that they are incompatible with the UNCRC rights.  Without such an ability, it would be difficult to ensure that public authorities were acting compatibly with the UNCRC. Effective support measures would be required to assist children in bringing such challenges.

The approach taken by the Bill to awards of financial compensation should broadly follow the approach taken to just satisfaction damages under the HRA.  The approach taken by the Human Rights Act 1998 allows for reasonable measures of compensation in appropriate cases, without it becoming excessive, punitive or disproportionate. While financial recompense will rarely be a principal motivation in such cases, it is important nonetheless to fairly reflect the impact that a breach has had on an individual.

The Equality Act 2010 currently excludes the right to claim compensation for disability discrimination in schools. This new legislation may provide an alternative route for children who have experienced such discrimination.

UNCRC rights should take precedence over provisions in secondary legislation – as is the case under the HRA for ECHR rights.  It would be very peculiar to have a situation where a statutory instrument could effectively overrule the UNCRC, when the Scottish Ministers (who produce the SSI’s in the first place) are required to act in accordance with the UNCRC.

The Bill should contain strong provisions requiring an Act of the Scottish Parliament (ASP) to be interpreted and applied so far as possible in a manner which is compatible with the rights provided for in the Bill?

The Bill should also contain a regime which would enable rulings to be obtained from the courts on the question of whether a provision in an ASP is incompatible with the rights secured in the Bill?  This would allow for the rulings to be made prior to legislation coming into force, avoiding the confusion and expense of such a ruling coming only once a law is operating. Cf. the Supreme Court’s decision in the case of Christian Institute & Ors v. The Lord Advocate [2016] UKSC 51 which ruled on the incompatibility of aspects of the named person scheme with Article 8 of the ECHR before the relevant sections of the Children and Young People (Scotland) Act 2014 came into force.

A special test for standing to bring a case under the Bill should not be required.
The existing tests applied by courts in relation to standing should be applied in UNCRC cases as well. In particular, additional hurdles for child litigants (such as
those imposed by the capacity and wellbeing assessments in the Education (Additional Support for Learning) (Scotland) Act 2004, as amended) should be
avoided.

Iain Nisbet, Education Law Consultant