Category: Incorporation

UDHR@75: Right to Effective Remedy

Human rights, Incorporation, Right to Remedy, UDHR

Photo credit: Priscilla Du Preez

This blog forms part of a series celebrating the 75th anniversary of the Universal Declaration of Human Rights (UDHR). Recognising the numerous conflicts and the daily breaches of human rights taking place across the globe, this series aims to highlight both the challenges and the opportunities to respect, protect and fulfil the human rights elaborated in the UDHR.

 

 

Right to Effective Remedy 

Article 8 of the UDHR

‘Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.’

The right to an effective remedy is the bedrock of human rights protection, offering a lifeline to those victimized by violations. It ensures access to justice through domestic courts, a critical element in upholding the rule of law and societal order. Without this avenue, vulnerable individuals are left without recourse, paving the way for unchecked impunity and the perpetuation of human rights abuses. However, pursuing an effective remedy isn’t a straightforward path, often proving practically unattainable, particularly for victims facing multiple violations or encountering legal and bureaucratic obstacles. Factors like exorbitant court fees, unfair time constraints, restricted legal aid, or the inability of domestic courts to apply international human rights law due to unincorporated treaties pose significant challenges, a reality observed in Scotland’s legal landscape. 

I was nominated by the University of Edinburgh’s School of Law for a Work-based Placement, in lieu of a traditional dissertation, to explore access to justice in collaboration with the Human Rights Consortium Scotland. This immersive experience delved deep into Scotland’s legal dynamics, emphasizing the complex relationship between the Scottish Government and the UK’s central Government, the limitations surrounding international human rights law within domestic contexts, and, most crucially, the barriers individuals encounter daily while accessing justice. At this pivotal juncture, the Scottish Government faces an opportunity—considering the incorporation of core human rights treaties. This step could empower the people of Scotland to assert their rights fully, especially in cases concerning economic, social, and cultural rights, thereby reinforcing the right to an effective remedy. 

My professional background in Sweden’s public sector and multiple publications on the topic of international criminal justice align closely with the insights gained during this program. In short, the necessity of the right to an effective remedy is as fundamental as core human rights such as the right to not be arbitrarily detained or the right not to be discriminated against. It serves as the linchpin ensuring the practical applicability of human rights, tearing down barriers for victims of abuses, and transforming the abstract as well as aspirational content of human rights treaties into tangible, actionable rights.  

The evolution of human rights and the ongoing quest for meaningful protection remain in constant flux. National contexts present diverse challenges at different stages of advocacy. Yet, this diversity underscores the immutable truth—human rights efforts must never stagnate. Despite past progress, the call to fortify human rights and advocacy remains unyielding. In conclusion, the right to an effective remedy is not merely a legal doctrine; it is a shield for the oppressed, a beacon guiding justice, and a cornerstone of a society built on fairness and equality. Scotland’s stride toward incorporating core human rights treaties could mark a transformative leap toward equitable justice. It’s a testament to the evolving landscape of human rights—an evolving journey where stagnation finds no room. The pursuit of justice and the fortification of human rights remain perpetual endeavours, resonating with the essence of Article 8—never static, always advancing. 

 

As part of the GJA UDHR@75 celebration, we invited present and past students to contribute their personal reflections on the relevance of the UDHR today. This blog is by Alexander Pedersen, who graduated from the LLM in Human Rights in November 2023.

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The Ruth Adler Human Rights Lecture 2023 – Ms Mama Fatima Singhateh

Child participation, Children's Rights, Human rights, Incorporation, International Law, Sale and sexual exploitation, Scotland, Sexual Violence, UK, UNCRC

 

On 14 March 2023, the Global Justice Academy hosted the Ruth Adler Human Rights Lecture by  Ms Mama Fatima Singhateh, the UN Special Rapporteur on the Sale and Sexual Exploitation of Children. Focussed on the importance of child participation, she talked about her functions as Special Rapporteur, the human rights law regulating the principle of participation, the importance of applying this principle and the challenges and opportunities it faces. The connection between Ms Singhateh’s work as Special Rapporteur and focus on children’s participation is highly relevant here in Scotland in light of the role of child participation envisioned in the pending UNCRC Incorporation legislation and the Committee on the Rights of the Child’s most recent Concluding Observations on the UK’s implementation of the UNCRC.Ms Mama Fatima Singhateh is being presented by Dr Kasey McCall-Smith, Director of the GJA.

The Special Rapporteur began by explaining her functions: In annual reports to the UN Human Rights Council and UN General Assembly on thematic studies, she addresses thematic issues such as the sexual exploitation of children online, sexual exploitation of children in travel and tourism, including in the context of major sports events; the sale and sexual exploitation of children through prostitution and child trafficking; and sale of children for illegal adoption, transfer of organs, child marriage and forced labour. Furthermore, she analyses the root causes of the sale and sexual exploitation of children, identifies new patterns of the phenomena, exchanges good practices to combat this scourge, promote measures to prevent it, and make recommendations for the rehabilitation of child victims and survivors of sale and sexual exploitation, primarily targeted towards Governments, UN bodies, the business sector and non-governmental organisations. In addition to the annual reports, the Special Rapporteur undertakes country visits, sends out communications to States and other stakeholders on individual cases of reported violations and concerns of a broader nature, engages in awareness-raising and advocacy to promote and protect children’s rights, provides advice for technical cooperation, and contributes to the development of international human rights standard. In exercising these functions, the Special Rapporteur prioritises access to child-friendly spaces. Furthermore, she dialogues with children and hears their thoughts on the issues her mandate addresses.

Then, the Special Rapporteur turned to the issue of child participation and the human rights law regulating the topic. Children’s participation is a principle emanating from Article 12 of the UNCRC on the right to be heard. Even though the UNCRC does not expressly use the term’ child participation’, she affirmed that ‘the term has evolved and is now widely used to describe ongoing processes, which include information-sharing and dialogue between children and adults based on mutual respect, and in which children can learn how their views and those of adults are taken into account and shape the outcome of such processes.’  The Special Rapporteur also referred to the UNCRC, in general terms, as the most widely ratified human rights treaty in history. She recognised that children’s lives had been transformed by the UNCRC but affirmed that ‘there is, however, more work to be done to better promote and protect the rights of all children’. Finally, she made a particular reference to the UNCRC Incorporation (Scotland) Bill: While celebrating Scotland’s bold step in fully incorporating the UNCRC into Scottish legislation, she noted that the Scottish government must ensure that it follows through by reintroducing revised legislation so that effective implementation can begin.

When referring to the importance and application of child participation, the Special Rapporteur reminded the audience of the extent of article 12 of the UNCRC: ‘Children have a right to participate in any decision-making process affecting them as well as influence decisions taken on their behalf’. She affirmed that participation helps children develop confidence in their worldviews and value. Additionally, she recalled practical approaches that have created positive changes in ways of working with children, such as using child-friendly spaces and forums and including them in public policy development and monitoring.

End FGM

Scottish Women’s Right Centre

A concrete example helped the audience to clearly understand Ms. Singhateh’s argument. The case was about role that children participation played in work carried out by an NGO against female genital mutilation (FGM). She explained that this secret practice was part of an initiation rite in a particular country. From focus groups with girls between 12 to 18 years old, the NGO learned about FMG and the rejection and embarrassment that it caused among them. With the active involvement of children, the NGO proposed restructuring the rite towards an ‘initiation without mutilation’. This turned into a successful campaign that produced a change in the places where it intervened and that was replicated in other communities. The lesson the Special Rapporteur takes from this example is ‘that deliberate and strategic actions to facilitate and create a conducive environment for children to participate in decisions about their lives can make a great difference in how the world perceives, protect, and promote their rights’.

In the last part of her lecture, the Special Rapporteur addressed the challenges and opportunities to child participation. By taking the audience through real-life stories she learned from survivors during her country visits, she highlighted the importance of raising awareness of the different manifestations of sexual abuse and sexual exploitation. She also referred to the government’s responsibility to design child protection policies that provide education and awareness raising, as well as ensure children have access to professionals where they can speak freely on any issue happening to them at home. In addition, she highlighted the need to provide professionals with skills and tools to effectively communicate with children, especially victims and survivors who have suffered abuse. Ms Mama Fatima Singhateh with Dr Kasey McCall-Smith and students from human rights the legal clinic

The Special Rapporteur also recommended involving children as trainers and facilitators of child participation and explained how they could participate at international-level gatherings designed for children and adults. Ms Singhateh concluded her lecture by ’emphasising the need to provide children with the opportunity to be heard, influence decision-making and achieve change’.

In line with the practical approach that Ms Singhateh gives to her mandate, she also accompanied the director of the GJA, Dr Kasey McCall-Smith, to a session of the human rights clinic. Students working on issues relating to the prohibition against torture and child rights budgeting were able to share their work with her and receive her questions and comments.

Ms Singhateh’s mandate as Special Rapporteur on the Sale and Sexual Exploitation of Children was extended for another three years. We look forward to reading more about her innovative efforts on enhancing children participation in her endeavours on promoting and advancing their human rights.

 

 

Valentina Rioseco Vallejos

This post was written by Valentina Rioseco Vallejos. Valentina is a Chilean lawyer who holds an LLM in Human Rights from the University of Edinburgh. She is currently studying a PhD in Law, focused on incorporating a human rights approach to irregular migration. Valentina is a Research Assistant for the Global Justice Academy.

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Strengthening the UNCRC (Incorporation) (Scotland) Bill

Children's Rights, Devolution, Human rights, Incorporation, Scotland, Uncategorized

This post is 2 of 2 by Dr Kasey McCall-Smith examining the UNCRC (Incorporation) (Scotland) Bill. This post highlights how stronger interpretive tools could strengthen the Bill and deliver a brighter future for children in Scotland. Dr McCall-Smith serves on the Expert Advisory Group on UNCRC Incorporation convened by the Children and Young People’s Commissioner Scotland and the Scottish Alliance for Children’s Rights (Together). @KMSonIntlLaw

 

In a previous post I presented some of the key triumphs of the UN Convention on the Rights of the Child (Incorporation) (Scotland) Bill (Incorporation Bill) that is currently before Scottish Parliament. This post suggests some ways in which the current Bill could be strengthened in terms of the interpretation of the UN Convention on the Rights of the Child (UNCRC) rights incorporated through Schedule 1 of the Bill. Expanding the interpretive scope further would better support the progressive realisation of children’s rights, shore up protection for children with intersectional vulnerabilities and ensure that Scotland becomes ‘the best place in the world to grow up’.

Match the Interpretive Tools Available to the Courts With Those of Scottish Ministers

One of the clearest ways in which the Scottish Parliament could strengthen the Incorporation Bill is to further enhance the interpretive tools available to courts when determining a question in connection with the UNCRC. At present, section 4 of the Bill outlines the ‘things’ that courts or tribunals ‘may take into account’ as: (1) the preamble of the UNCRC; (2) the articles directly incorporated through Schedule 1 of the Bill; and (3) provisions of the UNCRC and the articles that are not included in Schedule 1. The glaring gap is the failure to include the interpretive opinions or instruments of the Committee on the Rights of the Child (CRC) that oversees the international implementation of the Convention. These opinions/instruments include Concluding Observations on UK periodic reports, Final Views (on individual communications), General Comments and reports on general discussion days – in which the UK and Scotland have actively participated in both government and civil society capacities. Including these as interpretive reference tools is important in order to keep on top of international developments in children’s rights, progressively realise UNCRC rights and to ensure that interpretations in Scotland track the specific advice of the CRC in terms of its engagement with the collective UK and broader international community. Notably, if the UK were to ratify the Third Optional Protocol on an Individual Communications Procedure (addressed in s5), that process would generate further instructive opinions on the implementation of children’s rights in the UK that should, arguably, be a strong push factor for the UK.

The omission in section 4 of the Bill is intentional considering that Part 3 of the Bill brings these instruments in for the purposes of Scottish Ministers making, amending and remaking a Children’s Rights Scheme that will document the arrangements put in place to fulfil their duties outlined in the Bill. Section 12(2)(a) details that

(2)  In preparing the proposal, the Scottish Ministers—

 

(a) must have regard to

 

(i)  any report of the United Nations Committee on the Rights of the Child under paragraph 5 of article 44 of the Convention that the Scottish Ministers consider to be relevant, and

 

(ii)  any other reports, suggestions, general recommendations or other documents issued by the United Nations Committee on the Rights of the Child relating to the implementation of the Convention, the first optional protocol or the second optional protocol by the United Kingdom that the Scottish Ministers consider to be relevant, …

Though UNCRC Article 44(5) only make specific reference to the periodic reporting process, further practices, such as issuing general comments and holding days of discussion, has become a regular practice of the CRC and a key way in which the Committee can assess the most current information on children’s rights implementation. Section 12(2)(a)(ii) appears to accommodate the variable modalities of interpretation generated by the Committee but the granular reference to suggestions or general recommendations under UNCRC Article 45(d) implies that the same tools of interpretation are not available to the courts. The variable reference to the use of treaty body jurisprudence as an interpretive tool is further complicated in that General Comments are specified as a tool when reviewing a Children’s Rights Scheme in section 13(2) of the Bill but not expressly included when developing the Scheme under section 12.

While not viewed as binding by most States, the products of the treaty bodies are extremely important resources for interpreting children’s rights and UK courts have increasingly made reference to them when determining legal questions relating to children. Furthermore, general international law recognizes the role of the treaty bodies as the ultimate interpreters of their respective treaties. Clarifying that the treaty body jurisprudence should be included in the judiciary’s interpretation toolkit would help encourage culture change and reinforce the value of international human rights interpretation. Even if under Scots law the judiciary has the power to take anything it deems appropriate into account, if we are going to entrench the UNCRC in Scotland, there must be a tether to the jurisprudence of the CRC Committee.

Maximizing the Availability of Interpretive Tools

To be even more effective, the interpretive tools should be expanded to include relevant resources from other treaty bodies, such as the Committee on the Rights of Persons with Disabilities that oversees the Convention on the Rights of Persons with Disabilities. In cases where interference with children’s rights involves the intersection of various identities, cross-referencing across the treaties is the best way to ensure the highest attention to the individual’s needs. The recent experience of the right to education during the Covid-19 pandemic illustrates the value in maximizing the sources available in the interpretive toolkit.

During the UK lockdown one of the most common complaints was the breach of the right to education for children. Children with disabilities or socio-economic vulnerabilities or both were particularly impacted by the closure of the schools. While the Committee on the Rights of the Child has issued guidance on implementing the right to education (now rather dated), both the Committee on the Rights of Persons with Disabilities and the Committee on Racial Discrimination have provided far greater guidance in how to address the right to education for children that often suffer inequality due to their intersectional identities. To construct a minimum core to the right to education and offer guidance on how to deliver that under normal and extraordinary circumstances, such as those created during the pandemic, it is incumbent on decision makers to canvass the wide range of materials that are available. This does not mean that they must follow the treaty body interpretations to the letter. However, opening up the possible tools to which decision-makers may avail themselves is a clear step forward toward a holistic, human rights based approach to interpreting children’s rights.

Make it Stronger to Make Rights Real

The consistent political rhetoric about adopting the ‘gold standard’ children’s rights through incorporation of the UNCRC is not just about putting the static articles of a 30 year-old treaty into Scots law. It is about recognizing the dynamism and evolution in children’s rights and their capacity to exercise them in the pursuit of creating a stronger, more inclusive society. Effective implementation will require the synthesis of a broad range of law and policy that responds to lived experience. The interpretive tools offered by the UN human rights treaty bodies provides an easy starting point for decision-makers. Explicit reference to these tools across all interpreters of children’s rights under the proposed UNCRC Incorporation Bill would go a long way in ensuring that we make children’s rights real in Scotland.

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Scotland Poised to Deliver Maximal Protection of Children’s Rights

Children's Rights, Human rights, Incorporation, Law and Legal

This post is 1 of 2 by Dr Kasey McCall-Smith examining the UNCRC (Incorporation) (Scotland) Bill. The first highlights some of the key features of the Bill that will push for a better future for the children of Scotland. Dr McCall-Smith serves on the Expert Advisory Group on UNCRC Incorporation convened by the Children and Young People’s Commissioner Scotland and the Scottish Alliance for Children’s Rights (Together). @KMSonIntlLaw

 

Key Features of the UNCRC (Incorporation) (Scotland) Bill

After a decade of advocating for incorporation of the UN Convention on the Rights of the Child (UNCRC) in Scotland, there is much to celebrate following Deputy First Minister John Swinney’s introduction of the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill (‘Incorporation Bill’ or ‘Bill’) in Scottish Parliament on 1 September 2020. The Bill proposes direct, maximalist incorporation through transposition of the UNCRC to the extent possible under Scotland’s current devolution settlement. It makes good on the 2019 pledge by the First Minister to incorporate the UNCRC into Scots law before the 2021 elections. The Bill signals a massive forward step by Scotland to deliver UNCRC Article 4, which requires States Parties to ‘undertake all appropriate legislative, administrative, and other measures for the implementation’ of the UNCRC. If the Bill passes through Scottish Parliament relatively unchanged, Scotland will become the leader among the devolved nations of the UK in terms of children’s rights protections and also provide a strong signal to the rest of the world about its commitment to promote and protect children’s rights. This post examines some key features of the Incorporation Bill while the next post highlights where further improvements would be welcomed.

The ‘Maximalist’ Approach

For those who have worked many years to realise the potential of the UNCRC to stimulate law and culture change in Scotland, the Incorporation Bill delivers and remains true to the Government’s commitment to take a ‘maximalist’ approach. The Bill directly incorporates the UNCRC by reference and in Schedule 1 lists the relevant articles with some notable redactions from the original treaty text seen necessary to accommodate devolved competences. Not only does it directly transpose the bulk of the UNCRC articles, it further includes two of the optional protocols to the Convention (Optional Protocols on Children in Armed Conflict and on the Sale of Children, Child Prostitution and Child Pornography), it keeps open the possibility to easily add further articles of the Convention and protocols in the event of further devolution or ratification by the UK of the Third Optional Protocol on an individual communications procedure (s5).

Clarifying who is a child

Of the almost 5.5 million people in Scotland, just over 1 million meet the UNCRC Article 1 definition of a child as individuals aged 0 to 17 according to the Mid-2019 Population Estimates. Scotland has long struggled to maintain a clear definition of who is ‘a child’ qualifying for enhanced legal consideration in terms of both participation rights and protection due to its mixed approach of referring to ‘children’ as those under 16 and 16-17 year-olds as ‘young people’ depending on the subject-matter of a particular law. The Incorporation Bill adopts the UNCRC definition and confirms that all under-18s will have recourse to the UNCRC as incorporated. The Bill therefore excludes any room for modifying the definition under other Scots laws.

Respect and Protect

The UNCRC Incorporation Bill introduces a more comprehensive range of duties with which the variable arms of the Scottish Government will be required to comply. Firstly, the Bill requires all public authorities – including Scottish Ministers, courts, local authorities, health authorities, Children’s Hearings panels, etc (see s16) – to act compatibly with the UNCRC (s6). Secondly, section 11 of the Bill requires Scottish Ministers to develop, publish and review a ‘Children’s Rights Scheme’ detailing the arrangements they are putting in place to ensure they comply with their duties under section 6. The Bill further subsumes the Children and Young People (Scotland) Act 2014 duty on Scottish public authorities to publish reports on how they are ensuring compliance with the UNCRC. The change of language from ‘respecting’ under the 2014 Act to ‘ensuring’ is significant and should guarantee greater attention to implementation than ever before.

Enforcement

Under section 7 of the Incorporation Bill failure of a public authority to act or acting incompatibly with the UNCRC will give rise to a legal claim and enable the UNCRC to be raised in any legal proceeding (s7). Legalising the justiciability of children’s rights under the UNCRC is arguably the crowning achievement of the Bill. However, justiciability will only matter if the rights are promoted and reinforced through education, resources and culture change. Simplifying the understanding of the role of the UNCRC in law and how to access these rights will be essential to ensuring access to justice.

Following incorporation, all under-18s will be able to raise claims alleging that a public authority has contravened the incorporated UNCRC articles (s7) and all legislation raised before the courts will require interpretation in line with the treaty. This significant change in the protection of children’s rights will guard against the inconsistent interpretive references to the UNCRC that currently permeate Scottish jurisprudence.

As introduced, not only will Scottish courts have an obligation to determine breaches of the UNCRC, under section 20 courts may make a ‘strike down declarator’ against laws predating the commencement of the act. This will aid in rectifying existing laws that directly or indirectly run contrary to the UNCRC. Additionally, section 21 enables courts to deliver a ‘declarator of incompatibility’ for proposed legislation, thus protecting children’s rights before a conflicting law is adopted. If the Incorporation Bill passes through Scottish Parliament with these judicial capacities intact it will represent a new era in the protection and fulfilment of children’s rights in Scotland, with enforcement potential unparalleled in the rest of the UK.

An Unprecedented Opportunity for Scotland’s Children

The proposed UNCRC Incorporation Bill is poised to reshape the way in which government actors and courts use the UNCRC as a tool to respect, protect and fulfil children’s rights in Scotland. The only way for the Bill to deliver comprehensive, enforceable rights protections for children is through a multi-layered implementation approach with a long-term vision. When passed, the final Bill will set in motion further audits of existing law and the development of comprehensive policy guidance. Incorporation will not magically deliver the tripartite respect, protect and fulfil approach to children’s rights overnight, however, incorporation of the UNCRC can, and eventually will, be the touchstone for securing a better life for children in Scotland.

To read the second post on the Bill, click here.

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Incorporation of the UNCRC into Scots Law: What, How and Why?

Children's Rights, Human rights, Incorporation, Scotland

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.

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