Scotland Poised to Deliver Maximal Protection of Children’s Rights

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.

Off the Record: 9/11 Military Commission in its 7th Year

This is the third post in a blog series by Dr Kasey McCall-Smith which examines some of the contentious legal issues raised in the US v. Khalid Shaikh Mohammad, et. al. military commission proceedings against the five men charged with various war crimes and terrorism in relation to the 11 September 2001 attacks on the US. The series is a continuation of her project ‘Torture on Trial’ which was funded by a grant from the Royal Society of Edinburgh and is supported by the Edinburgh Law School.

Whatever Happened to the Alleged 9/11 Terror Plotters? 9/11 Military Commission in its 7th Year

The largest criminal justice trial in US history is currently taking place on Naval Station Guantánamo Bay. For the most part, the general public has no idea. Apart from consistent media coverage by a small handful of journalists, including Carol Rosenberg (formally of The Miami Herald and now with the New York Times) and John Ryan of Lawdragon, the US public and the formerly vocal academy have forgotten that five men, Khalid Shaikh Mohammad, Khallad bin Attash, Ammar al-Baluchi, Ramzi Bin Al-Shibh and Mustafa al-Hawsawi, are charged with conspiracy to commit various war crimes and terrorism in relation to the September 11th attacks under the Military Commissions Act 2009 (MCA) in United States v. Khalid Shaikh Mohammad, et al. (9/11 case). In previous blogs I have explained the choice of venue for the detention facility, law of war detention, details on some of the detainees, and addressed issues relating to torture. This series looks in more detail at specific issues in the trial and why controversial legal stand-offs may not go away.

The first incarnation of the military commissions were replaced by the MCA following the US Supreme Court decisions in Hamdan v. Rumsfeld and Boumediene v. Bush. The MCA applies to alien terrorist suspects and members of al Qaida, defined as alien ‘unprivileged enemy belligerents’, rounded up from 2002-2008, though recently there has been talk of the potential use of the statute to detained ISIS fighters.

 

The MCA sets out its applicability to offences before, on and after 11 September 2001 and raises questions about the long-standing principle of no ex post facto laws and the creative addition of ‘conspiracy’ to accepted war crimes definitions. The statute combines different and overlapping issues of military law, constitutional law and international law. Observing the 9/11 hearings, the failure to thoroughly evaluate the relationship between these different legal systems is proving problematic in every aspect of the trial’s slow progress. The only clarity lies in the fact that legislative responses to 9/11 were walled off from the realities of the outrageous conduct of the CIA during its Rendition, Detention and Interrogation programme.

According to the Senate Intelligence Committee Study on CIA Detention and Interrogation Program (SSCI Report), it is well documented that Khalid Shaikh Mohammad was subjected to combinations of ‘enhanced interrogation techniques’, so-called EITs, equating to torture designed to exercise total control over the victim. Notably, he suffered periods of sleep deprivation lasting up to 180 hours and was ultimately waterboarded 183 times. The other four defendants were similarly treated. Bin Al-Shibh was subjected to EITs for approximately 34 days and kept in social isolation for almost 2.5 years. Bin Attash and al-Baluchi were subjected to EITs over a period of months. The CIA waterboarded al-Hawsawi and further subjected him to such brutal bodily treatment that he suffers irreparable physical damage. In short, US agents subjected each of them to a sustained and systematic programme of torture in direct violation of US and international law.

The illegal actions by the US were defended by the then Bush Administration as necessary to national security. When rumours and then evidence of ill-treatment began to leak out of US military bases abroad, international civil society and US civil rights groups called for the US, as well States working in concert with the US, to maintain detention and treatment standards demanded by the law. In particular, the customary Law of War and standards outlined in the Geneva Conventions as well as the Convention Against Torture were frequently invoked. Yet as the first detainees arrived in Guantánamo on 11 January 2002 these well-established rules appeared to be the furthest thing from the US government’s mind. For anyone watching as the first goggled and shackled jumpsuit-clad men dropped to their knees in the Cuban heat it was clear that this would be a long game. Of the approximately 780 men that were detained in Guantánamo since it opened the doors to the now defunct Camp X-Ray (pictured below), only 40 remain. One man (Balhul) is serving his sentence following conviction by military commission, 26 are known as ‘forever prisoners’ and eight are currently under charge, including the 9/11 defendants. The 9/11 charge sheet alleges that the defendants committed conspiracy, attacked civilians, and committed murder in violation of the Law of War, intentionally caused serious bodily harm, hijacked an aircraft, and committed acts of terrorism resulting in the deaths of 2.976 along with countless injuries. Following their arraignment on 5 May 2012, intentionally causing serious bodily injury was struck from the charges in the early months of the case. From the outset, issues regarding public access to the trial were raised. Limited public access to close circuit broadcast sites was offered to families soon after the litigation commenced. Though now only a trickle of viewers attend the 40 second delayed live-streams at Fort Meade, Fort Devens and Fort Hamilton. The roster of media and civil society observers at Camp Justice, too, can only be described as small when compared to the original outpouring of attention on the detention activities in Guantánamo.

In its 7th year of pre-trial proceedings, the 9/11 case is bogged down in a range of issues (see subsequent posts) that challenge the rule of law to its very core. How to reconcile the defendants’ status as both alleged terrorist war criminals and torture victims? Does US ‘reinterpretation’ of war crimes definitions square with the law of war? Can an appropriate balance between the alleged crimes and victimhood be achieved? Will the victims of 9/11 ever get the justice they deserve and, if so, at what cost? Seventeen years after the horrendous acts that markedly shifted western governments into a new era of aggressive national security pursuits, it seems that only time will tell. At the conclusion of the 35th round of hearings, we are left only with questions. 

Human Rights Act Repeal and Devolution: Quick Points and Further Resources on Scotland and Northern Ireland

Can the UK’s Human Rights Act be repealed? What would the process need? Is it even possible? What are the legal implications?

Christine Bell, Professor of Constitutional Law at Edinburgh Law School, Assistant Principal Global Justice and Director of the Global Justice Academy, offers this review of the current debate on repealing the Human Rights Act, and points readers to other available resources.

In the past few days repeal of the Human Rights Act, and in particular its devolution implications have attracted a lot of attention.  Today, a new report is launched from a legal expert seminar in April 2015, on the legal implications of repeal of the human rights act (see below).  The report provides the full chapter and verse, but here are a few quick points on the devolution implications, with further more detailed and reasoned resources below.

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