Scotland at the forefront of children’s rights

The UNCRC Bill was passed unanimously in Scottish Parliament last year, receiving Royal Assent on 16 January 2024, and coming into force on 16 July 2024. What does its enactment mean for practitioners and children?  

The UNCRC Bill and its procedural history

On 7th December 2023, the UNCRC (Incorporation) (Scotland) Bill was unanimously passed in the Scottish Parliament. The Bill received Royal Assent on 16th January 2024 and will come into force on 16th July 2024. So, what does its enactment mean for practitioners, and children, in Scotland?

The passing of the Bill concludes a decade’s worth of developments towards the codification of children’s rights in policy and practice in Scotland, and specifically, the Bill formally incorporates the United Nations Convention on the Rights of the Child – the UNCRC – into domestic law.

While the UK became a signatory to the UNCRC in 1991, the provisions of the UNCRC were not widely incorporated across the UK. Thus, the UNCRC Bill signifies a historic step by Scotland in addressing how children are recognised, supported and included in policy, justice and social decisions within Scotland. Incorporation connotes a step beyond mere ratification or accession, and demonstrates an intention by the state to be accountable to the Convention’s provisions.

The journey toward enactment of this Bill has not been without challenge. The Bill was first introduced in September 2020, and faced legal challenge by the Supreme Court on the basis that the Scottish Parliament exceeded its legislative competence by referring to reserved matters within the proposed Bill. While human rights are a devolved matter via the Scotland Act 1998, certain provisions with the UNCRC could not be incorporated into the Bill as this would exceed the powers of the Scottish Parliament.

To contextualise, certain provisions of the UNCRC could not be reiterated in full as to do so would be outside the legislative competence of the Scottish Parliament as these provisions cross over into reserved matters. These include cases that may fall under the ambit of the following articles of the UNCRC: Article 7 (the right to a nationality), Article 11 (abduction or unlawful relocation) and Article 38 (war or armed conflict), as these traverse across to topics of international relations, defence and immigration.

Separate to this, the Bill in its former construction, instilled the ability of the Scottish Parliament to deem legislation incompatible with UNCRC requirements to be void insofar as the extent of the incompatibility in the secondary piece of legislation (UNCRC Bill [As Introduced], s 20). This was described as a “strike down declarator”, which resulted in either ministerial action or “judicial condemnation (para 52). This power, as originally drafted, was to include both Acts of the Scottish Parliament and Acts of Parliament, with the latter prompting judicial consideration.

The Bill also granted to the Scottish Parliament interpretative powers to “read” and “give effect” to legislation in a manner consistent with UNCRC requirements (para 3). The conclusion by the Supreme Court was that the Scottish Parliament had exceeded its legislative competence on both points. This secondary action that followed strike down action was what led the court to decide that the Bill was outside the Scottish Parliament’s legislative competence because it placed the Parliament’s power to make laws “conditional” on the courts and Scottish ministers (para 54). In respect of the interpretation powers, this was on the basis that the UNCRC Bill makes “the effect of Acts of Parliament conditional on the courts’ being satisfied as to their compatibility with the UNCRC requirements” (para 45).

On 6th October, the UK Supreme Court concluded that the UNCRC Bill exceeded its legislative competence on the basis that certain provisions would modify Section 28(7) of the Scotland Act, and related to reserved matters. A revised Bill was therefore returned to the Scottish Parliament on 7th December 2023 with significant revisals to these provisions.  

The Bill’s changes and substance

The revised, and now passed, Bill creates a number of obligations to which individuals, public authorities and children should take note of. The Bill’s enactment binds local authorities to act in a manner consistent with the UNCRC (Section 1), and formally outlines methods to do so. Section 6 of the Bill outlines that an act of a public authority which is incompatible with the UNCRC will be deemed “unlawful”.

In the event that a public authority has acted in a manner inconsistent with the UNCRC, a child can challenge the actions of that public authority via a judicial route (Section 7) and seek a remedy for the purported unlawful act. Importantly, the Bill includes an express provision requiring a court or tribunal to take the view of the child as to the effectiveness of the remedy or relief proposed. A few important caveats to mention are that proceedings are to generally be raised within one year of the alleged unlawful act taking place (Section 7(9)), though this only begins at the point the child turns 18 in the event that the act occurred while the child was under the age of 18. In any case, a specific provision is included in Section 7(12) to allow for the court or tribunal to exercise its discretion to bring an action outwith the one-year time-bar if it is “equitable to do so”.

Part 3 of the Bill commits to the founding of a Children’s Rights Scheme as a measure of ensuring public authorities are complying with their obligation to act consistently with UNCRC requirements. The Bill specifically delineates a non-exhaustive list of arrangements for Scottish ministers to refer to within this scheme (Section 14(3)). This includes ensuring the participation of children and young people, considering their rights in the Scottish Government’s budget process, and communicating in an inclusive, child-accessible manner. An obligation to consult relevant persons is imposed on Scottish ministers in curating the proposal for the scheme, including the Children and Young People’s Commissioner Scotland and the Scottish Human Rights Commission.

The Bill’s impact

For the first time, children and young people have legislation enshrining a right of legal recourse for breaches of the rights described within the UNCRC. The Bill codifies an obligation on public authorities to act consistently with UNCRC requirements and deems unlawful acts that are incompatible with this. The incorporation of children’s rights into ministerial decision-making marks a momentous step toward accountability and consideration for generational knock-on harm, particularly with respect to the fact that the Scottish budget process now must consider how budgetary decisions may affect the rights of children.

For those working within the legal and policy industries, the true impact of the Bill is yet to be seen. However, it is evident that by enshrining these rights, children and young people will have the ability to exert their rights under the Bill in a manner that ensures their voices are protected and heard in all principal institutions of state.

Written by Makaela Fehlhaber, Family Law Administrator/Paralegal at Gibson Kerr