In Scotland, on 16 March 2021, the Scottish Government passed the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill. The purpose of the Bill is to incorporate the United Nations Convention on the Rights of the Child (UNCRC) into the law of Scotland. The UNCRC is an International Human Rights Treaty which sets out the rights which every child is entitled to. The UN adopted the UNCRC over 30 years ago in 1989. Although the UK ratified the UNCRC on 16 December 1991 and it came into force in the UK on 15 January 1992, it has not been directly incorporated into any of the constituent countries of the UK's domestic law. It seems likely that Scotland will be the first country in the UK to do so as the UNCRC will become part of Scotland's domestic law six months after the Bill receives Royal Assent.
The commencement date of the Bill is currently unknown as the Supreme Court is to make a ruling on the legal competence of some sections of the Bill after the UK government referred some aspects of the Bill to it under section 33 of the Scotland Act 1998. This section allows the Lord Advocate, Advocate General or the Attorney General to refer a Bill, or any provision of a Bill, to the Supreme Court to decide whether the Scottish parliament has the legislative competence to make a Bill (or certain provisions of a Bill).
On commencement, children's rights noted in the UNCRC will be protected under the law of Scotland. The Convention has 54 articles that cover all the aspects of a child's life and sets out the civil, political, economic and cultural rights that all children should be entitled to. The new law will apply to all children and young people under the age of 18. It will mean that public authorities in Scotland must take steps to respect children's rights and their decisions and actions and if they do not, it allows children and their representatives to use the Courts in Scotland to enforce those rights. It will also mean that any new Scottish legislation must be interpreted in a UNCRC compatible way. It includes powers to allow the Courts to make strike down or incompatibility declarators in respect of incompatible legislation.
Scotland's Children and Young People's Commissioner's website refer to Scotland's "promises" to children under the UNCRC which include protecting and promoting children's rights to:
- Education
- Freedom from violence, abuse and neglect,
- Be listened to and taken seriously,
- A proper house, food and clothing and
- Relax and play
By adopting a maximalist approach to the incorporation of the UNCRC children's rights in Scotland will receive a significant boost. How the courts will deal with and implement these rights remains to be seen.
