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The United Nations Convention on the Rights of the Child (‘the UNCRC’) celebrated its 30th 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.

 

Read more at: https://ukhumanrightsblog.com/2020/03/24/strengthening-childrens-rights-in-scotland/

 

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