Incorporation of the UNCRC into Scots Law: What, How and Why?
This post by Dr Kasey McCall-Smith looks at the recent Scottish Government consultation on incorporation of the UN Convention on the Rights of the Child (UNCRC) into Scots law. It introduces basic incorporation concepts and the draft Children’s Rights (Scotland) Bill submitted to the Government by the Expert Advisory Committee on UNCRC Incorporation convened by the CYCPS and Together, of which Dr McCall-Smith is a member. This discussion is a starting point to an ESRC Impact Acceleration grant project entitled ‘Incorporating Human Rights in Scotland’ which runs September 2019 – March 2020.
Incorporation of the UNCRC into Scots Law: What, How and Why?
For many years, Scotland has worked to secure a strong law and policy foundation for the protection of children’s rights. These efforts, while commendable, have created a patchwork system of protections for children and equally inconsistent opportunities for children in Scotland to exercise rights that the majority of adults hold most dear, such as the freedom of expression, freedom from assault and participation in decision-making processes. International children’s rights practice confirms that the first step in securing the broad range of rights for children is through the incorporation of the UN Convention on the Rights of the Child (UNCRC). Across 54 articles the UNCRC protects civil, political, economic, social and cultural rights, encourages a holistic approach to addressing issues that affect children and seeks to offer balance when children’s rights at odds with other rights holders, such as parents or guardians.
As a party to the UNCRC since 1991 the UK has a legal obligation to ensure that all domestic legislation is compatible with the international agreement yet the UK has done little to collectively make children’s rights a priority through legislation. Thus, devolved UK nations, including Scotland and Wales, have individually made political and legal commitments to further entrench children’s rights in line with the UNCRC. To this end, earlier this year, the First Minister pledged to incorporate the UNCRC into Scots law. This pledge set in motion variable activities across government, Scottish Parliament and civil society to determine what this means and how best this is to be achieved in Scotland. A key problem is that very few law and policy makers have ever had the opportunity to go through the technicalities of incorporating a piece of international law – a human rights treaty – into national law.
A Consultation Paper seeking comment by the public was released by the Scottish Government in May 2019 as a prelude to UNCRC incorporation. The following examines some of the consultation’s subject matter.
What is incorporation?
A simple explanation of incorporation in the context of a human rights treaty such as the UNCRC is that it is a narrow conception of human rights implementation, which ensures direct application and enforceability of the rights in national law. ‘Direct application’ means that the UNCRC provisions are capable of being invoked in national courts and must be applied by government institutions. ‘Enforceability’ generally refers to the availability of institutions, such as courts or other administrative agencies, and procedures to provide a remedy for the breach of a right.
The consultation paper correctly notes that there is no single method of implementation, however implementation and incorporation are two different legal concepts that should be clarified. The Committee on the Rights of the Child (CRC Committee) has often reiterated that direct incorporation is the first step toward effective implementation while implementation represents the collective legal, policy and social initiatives that support the realisation of a right. Incorporation is effectively the entry point to realising children’s rights.
How do we achieve incorporation?
Incorporation can be achieved through a variety of methods. The options include direct incorporation, indirect incorporation (what the Government has incorrectly termed ‘transposition’) and piecemeal/sectoral incorporation as well as a host of options in between. Scotland has followed a piecemeal/sectoral approach thus far.
Direct incorporation is a term that has long been used in the UK and internationally to identify legislative practice of taking a piece of international law – in this case the UNCRC – and transposing it, or embedding it, directly into UK law using the verbatim language of the treaty, much like the Human Rights Act 1998 model did with the European Convention on Human Rights. It has many advantages as it ensures the rights remain comparable to those in the UNCRC rather than an alternative version, such as the option suggested in the Scottish Government’s consultation.
Indirect incorporation means that the treaty is either incorporated by another constitutional convention or that it is incorporated in some way that does not equate to direct incorporation. There are many variables in this option and the Scottish Government has identified this as ‘transposition’, which demonstrates the confusion around incorporation as it uses the word ‘transposition’ incorrectly. Transposition is not an appropriate word if talking about ‘redefining’ an international convention. This takes away an anchor to the language of the UNCRC that has been interpreted by the CRC Committee as well as across the 196 countries that are party to the treaty.
Piecemeal or Sectoral incorporation is the practice where different rights of the convention are incorporated into legislation that is sector specific, such as disabilities or criminal justice legislation. While effective in many instances, this approach results in large gaps in children’s rights protection.
The draft Children’s Rights (Scotland) Bill follows a direct incorporation model much like the HRA 1998 but going further to expand on important aspects that are necessary to fully protect children’s rights. The three part draft bill was developed by an advisory committee of experts on both children’s rights, constitutional law and international law. The advisory committee was convened by the Children and Young People’s Commissioner Scotland (CYCPS) and Together (Scottish Alliance for Children’s Rights).
Part I clarifies that the bill is about wholesale, direct incorporation. It sets out a clear framework of rights against which the relevant government authorities and the Scottish Parliament can check themselves to ensure that they have considered the wide range of children’s rights that could be impacted by government action, law or policy. It ensures that children’s rights are considered at the earliest stage of law and policy development.
It includes all articles of the UNCRC and the articles of the Optional Protocols to which the UK is party. Notably, if the UK ratifies further optional protocols, these could be added by order of the Scottish Ministers. The draft bill clarifies the relevant duty-bearing authorities, including Scottish Parliament, Scottish Ministers, any authority exercising functions in areas of law or policy devolved to Scotland and all Scottish public authorities.
Part I fulfils the Scottish Government’s political commitment to incorporate the UNCRC in Scotland in a proactive manner, rather than ad hoc or ill-defined rights that have no resonance with well-established jurisprudence. Notably, it highlights the many sources of interpretation sources available to interpret the UNCRC that already exist.
Part II delivers the real teeth of the bill, which makes it unlawful for relevant authorities to act incompatibly with the Convention or optional protocols. This is the reactive section of the bill, which complements the proactive approach described below and follows the Human Rights Act model. It requires all bills to include a statement of compatibility with the UNCRC, building on the existing CRWIA system, which while a strong commitment under the 2014 Children and Young Persons (Scotland) Act, has proven inconsistent in practice. It also includes enforcement through the legal system, including redress and remedies, and strike down powers for inconsistent legislation. Crucially, it recognises the standing of children and a range of further stakeholders in terms of judicial review, which is important in terms of public interest litigation that could aid in pre-empting harm. There is widespread acknowledgement that unless there is a remedy, there is no right. International practice has confirmed that simply because remedies exist, litigation floodgates will not be opened. In line with the proactive and reactive strategy behind the draft bill, litigation is a last resort but is absolutely necessary to make rights real for children and young people. Simply because rights will be reinforced by the bill and remedies will now be clearly available, it does not mean that children will be lining up to litigate. The point of the combined proactive and reactive strategy is that all relevant government authorities will think through the impact on children before missteps are taken.
Part III is the proactive section of the draft bill. It places a due regard duty on all relevant authorities providing the opportunity to ensure children’s rights are protected from the birth of a new law or policy. But as Welsh practice has demonstrated, due regard alone is not enough. It is simply one piece of the puzzle. Thus the draft bill enhances the due regard duty by requiring a Children’s Rights Scheme that requires child involvement in the development of new law and policy and requires consultation with the CYCPS – why would government and parliament ignore advice from the expert on children’s rights? The draft bill reflects international practice in some of the strongest children’s rights forward jurisdictions.
The draft bill also requires reports on compliance with the due regard duty to be laid before the Scottish Parliament every three years and that reporting is delivered in an accessible, child-friendly version. Without self-reflection and children’s participation, Scotland cannot be the best place for children to grow up.
Why incorporate the UNCRC?
As has been consistently advocated by the CYCPS, Together and the expert advisory group that has been working with the them for many months, full and direct incorporation is the preferred model for fully realising children’s rights in Scotland. The UNCRC framework is a trusted reference point, it has an established, identifiable body of interpretive jurisprudence not only in the UK but across the world, and gives extensive consideration to the basic needs of children across mainstream rights platforms as well as those children’s rights that are marginalised for any number of reasons. To be clear, the UNCRC is a floor, not a ceiling, and the language used in the Convention confirms that governments must do more than pay lip-service to the Convention if they are to fully deliver a legal landscape that promotes, protects and fulfils children’s rights and an environment where ALL children thrive.
The First Minister has claimed she would like Scotland to meet ‘the UN’s gold standard on children’s rights.’ Full and direct incorporation of the UNCRC is the most appropriate way to ensure that Scotland achieves this goal.