Tag: Justiciability

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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