THE DEVELOPMENT OF CHILDRENS RIGHTS
It is a common misconception that children’s rights are exclusively a modern phenomenon. Children’s rights are rooted in parts of human civilisation, which is documented both in philosophical and cultural historical records.
The protection of children’s rights, however, accelerated under the scope of international law in the 20th century. The UNCRC is the first international instrument that has recognised a child as a visible individual rights holder in the history of international law.
There are also other human rights treaties and instruments which provide rights protections for children too at an international, European, and domestic level such as the International Convention on the Elimination of Racial Discrimination and the Human Rights Act 1998.
Developments that have been furthering children’s rights across legislation, policy and practice in Scotland include GIRFEC, the Children and Young People (Scotland) Act 2014, the Scottish Government’s 2018-21 Action Plan, and most recently the Children (Scotland) Act 2020. A Scottish Government consultation in May 2019 sought views on the best way to incorporate the UNCRC and a draft Children’s Rights (Scotland) Bill in 2018 was also considered.
THE FUTURE OF CHILDRENS RIGHTS IN SCOTLAND
Signing the UNCRC treaty does not guarantee that the UNCRC will be respected, protected, and fulfilled. It must become part of domestic law, policy, and practice to ensure its fully implemented. This process is called incorporation.
On 16th March 2021, the Scottish Parliament unanimously passed the UN Incorporation (Scotland) Bill. The Scottish Minister has promised that this Bill will incorporate the UNCRC into Scots law “fully and directly” as far as its legislative competence will allow. Once in force, Scotland may become the first devolved nation in the world and administrative nation in the UK to incorporate the UNCRC into Scots law.
In the same parliamentary session that the Bill was unanimously passed the Scottish government also ended the physical punishment of children and raised the age of criminal responsibility to 12.
The UN Incorporation (Scotland) Bill:
- will place a statutory duty on Scottish Ministers and public authorities not to act incompatibly with the UNCRC and give powers of redress to children, young people, and their representatives in the courts. That could be by judicial review in the Court of Session or by using the UNCRC requirements as evidence in court proceedings.
- The Scottish Government will also be able to change law to make sure they are compatible with the UNCRC requirements.
- The Children and Young People’s Commissioner Scotland and Scottish Human Rights Commission will also have powers to take legal action to protect children’s rights.
- The Scottish Government must also publish a Children’s Rights Scheme which will be reviewed annually, to show how they are meeting UNCRC requirements and explain their plans for children’s rights. This Scheme will be an important tool in supporting children’s active participation in decisions that affect them. It will raise awareness of and promote their rights and mean that their rights are considered in budgeting processes.
- Other public authorities mentioned in the Bill must report every 3 years on what they have done to meet the UNCRC requirements.
The Supreme Court has ruled that some of the things this Bill sets out to do are not within the powers of the Scottish Parliament and as a result the Bill cannot become law in its current form. The Scottish Parliament is currently in the process of making further legislative changes to the Bill.