On the 16 of January 2024, after a lengthy incorporation process, the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill (UNCRC Bill) received Royal Assent. Upon receiving Royal Assent, the Bill will officially come into force in 4 months’ time (on 16 July 2024). What does this mean for children and their rights in Scots law?
What is the UNCRC Bill?
The UNCRC Bill officially incorporates the United Nations Convention on the Rights of the Child (UNCRC) into Scots law. In 1991, the UK became a signatory to the UNCRC. However, the provisions of the UNCRC were not widely incorporated into domestic law across the UK as a whole. The UNCRC Bill marks a historical step to integrate the UNCRC into the Scottish Legal System. The Bill provides a statutory basis for young persons to refer to in the protection and enforcement of their rights within Scotland.
What changes does the UNCRC Bill bring?
The Bill increases the responsibility of public bodies to protect the rights of the child. It places on them an obligation to report on compliance with the provisions of the UNCRC. These reporting duties are quite extensive and require public bodies to publish actions taken to ensure compliance with the UNCRC. These reports must also be published in a format accessible to children.
The Bill specifically requires public authorities to be ‘compatible’ with UNCRC requirements. A failure to do so is considered an ‘unlawful act’. These unlawful acts give rise to judicial remedies available to children and young persons. This means that children, young people, and their legal representatives are able to refer to the courts for enforcement of their rights. A specific provision is also included which allows a court or tribunal to consider the child’s views as to the effectiveness of that remedy where it is found that a breach of their rights has occurred.
The Bill also establishes a ‘Children’s Rights Scheme’ which places on Scottish Ministers an obligation to consider the rights of the child across their day-to-day activities. Importantly, it places a requirement to consider the rights of children in the ‘Scottish Government’s budget process’. Scottish Ministers must also publish their findings at each review period and put these before the Scottish Parliament. There is an explicit statutory provision imposing a duty on Scottish Ministers to publish the proposed scheme and consult children, the Commissioner for Children and Young People in Scotland, The Scottish Commission for Human Rights, and any other relevant person.
Impact
This change signifies a momentous step in the recognition of children’s rights within Scotland. It clearly delineates a pathway for children’s voices to be heard. The Bill codifies a right for children and young persons to resort to a court or tribunal to hold public authorities accountable for decisions that fail to effectively consider their views, while also cementing a requirement to consider the impact of our youngest generation in Ministerial decision-making. For firms, this opens a new challenge in law that may see an increase in child representation with the introduction of a legal avenue for them to pursue action against public authorities.
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