By Ewan Brown
On Tuesday 16th of July 2024, the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024[1] was brought into Scottish law becoming the first nation of the United Kingdom to do so - three years after being blocked by the UK Government through fears of exceeding devolution powers[1] .[2] This has been hailed as a ‘landmark moment’[3] and a ‘significant step towards ensuring children’s rights are respected, realised, and protected for every child across Scotland’[4] by peers in the human rights community - and follows the recent trend of strengthening children and young people’s rights in Scotland, from the expansion of free school meals, to free bus travel for under 22-year-olds, to free university tuition for all Scottish students. This article seeks to explain what the Convention is, the significance of this Convention for children and young people, and the effects of the new Act for those in Scotland.
The United Nations Convention on the Rights of a Child (UNCRC)[5] is legislation created in 1989 with forty one articles which seeks to ensure children’s rights to: health & education, leisure & play, fair & equal treatment, as well as the right to be heard and protection from exploitation. This means that children and young people enjoy further protections than previously, which can be seen in reality. For example, young people are often seen as ‘cheap labour’ as they earn significantly less per hour than their older counterparts, which often leads to exploitation and demotivation in their first jobs - exploitation from which, now, they have statutory protection. The Convention also contains thirteen articles focusing on implementation and progress tracking. It has been regarded as one of the most far-reaching and comprehensive pieces of international human rights law, which can be seen, given that its predecessor had a mere ten articles. Moreover, its international recognition - and thus significance - cannot be understated. Since its introduction, it has been ratified by 196 countries worldwide, including the United Kingdom, France, China & Palestine. Although ratification came from the United Kingdom in 1991, by bringing it into domestic legislation, only children in Scotland have the right to seek a remedy in Scottish courts or tribunals for breaches of their Convention rights by a public authority thanks to the Ac[2] t. Melton has hailed its universal application:
“Stunning in its scope, the Convention on the Rights of the Child is remarkable in its sensitivity to the diverse ecology of childhood…and [its] accurate representation of childhood, whether ordinary or exceptional circumstances."[6]
Scotland has become the first country of the United Kingdom to bring it into domestic legislation. This means that it requires all public authorities in Scotland - the government, health service, courts & local councils - to seek to protect children and young people’s rights when creating public policy and making policy decisions. The new law requires Scottish Ministers to publish a Children’s Rights Scheme annually, which will detail how the public can ensure how Scottish Ministers comply with this legislation. Moreover, it gives children and young people a newfound power to use the court system to hold these public bodies accountable for their actions. Children & Young People’s Commissioner for Scotland, Nicola Killean, spoke valiantly about the extensive scope of the Convention and the protection it carries, especially for those whose voice is less likely to be heard:
“...that's important for all children in Scotland, but it's especially vital for those whose rights are most likely to be ignored or violated…that includes disabled children, those living in poverty, young carers, care experienced children, and black & minority ethnic children."[7]
Following on, this Act is unique as it contains three key proactive measures of implementation. For example, the aforementioned right of children to use the courts to enforce their rights, the ‘compatibility duty’ whereby public authorities must act in compliance with the Conventions requirements, and, lastly, the removal of barriers to access justice, such as ensuring claims are not ‘time-barred’ during childhood and dealt with in an acceptable time scale. However, it goes without saying that experts in their field draw limitations of the Convention. For example, the legislation fully omits any right to protection regarding children and young people’s autonomy of their gender identity or sexuality[8] - omitting trans-kids from its scope of protection. Another example would be the omission of the right to access mental health support and services - however, the right to access healthcare is included in the Convention, but does not specifically mention mental health provisions. Moreover, poverty is a root cause of violation of children’s rights internationally[9]. Over 260,000 children are living in poverty in Scotland[10], so one can assume that every fourth child in Scotland does not benefit from the protections granted to them from this Convention, such as Article 13 “No Child Should be Disadvantaged”.
Looking to future generations, the Act has been proposed to extend children and young people’s rights in Scotland even further. From the introduction and recognition of infants’ rights, to more protection of children from online abuse and harm, to access to therapeutic & mental health services for those who have suffered neglect and abuse. It is evident that the scope and content of this Act make it one of the most substantive and comprehensive pieces of children’s rights legislation to ever be brought into domestic law in Scotland.
In summary, Scotland has once again proven its determination to extend the rights of children and young people throughout the country, however, there is still a long road to walk. Although the Act brings in more measures than ever before to protect children and young people, as seen with the inclusion of childrens’ rights when creating public policy in Scotland, more is needed to ensure all children can enjoy these rights - the content and the universal application of the Convention requires attention to ensure all children are actually protected by this legislation. For example, including the right to access mental health support, or the right to autonomy of gender identity and sexuality is a crucial omission in this current society. Overall, it is clear that the introduction of this Convention is a huge step towards complete recognition of childrens’ rights, yet, small challenges arising from content and the application of the legislation, as well as external problems, such as societal & economic factors also mean the legislation falters slightly in its intentions.
[1] Hereby referred to as “the Act/the legislation”
[2] A resolution was found when it was agreed that the UNCRC would only apply to Acts of the Scottish government only.
[3] BBC News, available here: https://www.bbc.co.uk/news/articles/cljy7jxwexzo
[4] Unicef, available here: unicef.org.uk/press-releases/scotland-votes-to-incorporate-childrens-rights-in-law/
[5] Hereby referred to as “the Convention”
[6] Melton, G., B. (2008) Beyond Balancing: Towards an Integrated Approach to Children’s Rights, 64 Journal of Social Issues, p. 908.
[7] n2
[8] Arts, K. (2014) 25 Years of the United Nations Convention on the Rights of the Child: Achievements and Challenges, Netherlands International Law Review, p. 273.
[9] Saccao, M.A., et al., (2012) Child and Adolescent Rights in Brazil, 20 International Journal of Children’s Rights, pp. 1-25.
[10] UNHS, available here: https://www.unhscotland.org.uk/post/child-poverty-and-human-rights-pop
background information on the power struggle to pass the Act. Politicisation of HR?
added to clarify the nuanced difference between ratification of UNCRC and bringing it into domestic law.
References:
Arts, K. (2014) 25 Years of the United Nations Convention on the Rights of the Child: Achievements and Challenges, Netherlands International Law Review, p. 273.
BBC News, (2024) “Scotland Incorporates UN Children’s Charter into Law”, available here: https://www.bbc.co.uk/news/articles/cljy7jxwexzo [Accessed 30/07/24]
Melton, G., B. (2008) Beyond Balancing: Towards an Integrated Approach to Children’s Rights, 64, Journal of Social Issues, p. 908.
Saccao, M.A., et al., (2012) Child and Adolescent Rights in Brazil, 20 International Journal of Children’s Rights, pp. 1-25.
Unicef, (2021) “Scotland Votes to Incorporate Children’s Rights in Law”, available here: https://www.unicef.org.uk/press-releases/scotland-votes-to-incorporate-childrens-rights-in-law/ [Accessed 01/08/24]
United Nations House Scotland, (2022) “Child Poverty and Human Rights POP”, available here: https://www.unhscotland.org.uk/post/child-poverty-and-human-rights-pop [Accessed 12/08/24]