As the UNCRC Bill comes back to the Scottish Parliament for reconsideration, UNCRC Project Officer Felicia Szloboda looks at how children's rights have developed in Scotland and what the legislation aims to achieve.
After months of delay, the amended UNCRC (Scotland) (Incorporation) Bill was brought back to the Scottish Parliament on 14 September and will now be amended and reconsidered by Holyrood. This is the perfect time to reflect on Scotland’s children’s rights journey to date and what this Bill really represents despite the legal challenges of domestic incorporation.
When we work hard on something specific for so long with seemingly no results or progression, it is easy to forget about the bigger picture and how far we’ve come on this journey. It is difficult to put an exact date on when children’s rights first ‘appeared’ in Scottish society and law. For many people, the year 1991, when the UK ratified the United Nations Convention on the Rights of the Child (UNCRC), marks the ‘beginning’ of children’s rights as we know them today. However, if we go further back in history, we can find examples of protection rights from the 19th century, such as the 1833 Factory Act, which was part of a series of attempts to regulate child labour during industrialisation in Britain.
Fast forward to the 20th century, and we see many more key milestones in Scotland’s children’s rights journey. After the atrocities of the Second World War, the Children Act 1948 placed a duty on local authorities to ‘provide a comprehensive service for the care of children deprived of the benefit of a normal home life’. Local authorities were required to exercise their powers to further the child's best interest. The end of the Second World War resulted in the establishment of the United Nations and the proliferation of human rights treaties. In 1989, the UNCRC was adopted, and the UK ratified it in 1991. The UNCRC, while not perfect, is the most comprehensive children’s rights instrument that covers a range of civil, political, economic, social, cultural rights and humanitarian law. In the Convention, children are both active rightsholders, who are entitled to their own rights, and vulnerable human beings in need of special protection.
The Children (Scotland) Act 1995 established the legislative framework for the current child protection systems in Scotland and it was the first Scottish Act underpinned by the general principles of the UNCRC. The Commissioner for Children and Young People (Scotland) Act 2003 established the role of the Children and Young People’s Commissioner in Scotland (CYPCS) with their primary functions of advocating for children’s rights and investigating whether a service provider has sufficiently regarded the rights and views of particular groups of children. The Children and Young People (Scotland) Act 2014 further embeds the UNCRC rights in Scots law and places a duty on specified public authorities and Scottish Ministers to report every three years on the steps they have taken to further children’s rights. It also requires certain Scottish Government officials to carry out Children’s Rights and Wellbeing Impact Assessments when they make decisions that affect children and young people in Scotland. The 2014 Act modifies the power of the CYPCS to allow the Commissioner to investigate cases affecting the human rights of an individual child.
The next milestone in Scotland’s children’s rights journey was reached in March 2021, when the Scottish Parliament unanimously passed the UNCRC (Incorporation) (Scotland) Bill that aims to directly incorporate the UNCRC into Scots law as far as possible. The Bill would give children the power to enforce their rights in domestic courts and hold public authorities accountable if their rights are violated. While this is a monumental step in children’s rights implementation, Scotland has taken an incremental approach to embedding children’s rights in domestic legislation and therefore public authorities are not starting from ‘scratch’ when it comes to compliance with children’s rights. In fact, many local authorities we have been working with in the past year have already developed action plans to ensure that children’s rights are embedded in everything they do.
This is a very ambitious Bill. So ambitious, in fact, that it was ruled to have gone over the legislative powers of the Scottish Parliament. The Bill aims to bring all legislation affecting Scotland in line with the requirements of the UNCRC; however, the Scottish Parliament does not have the powers to amend UK Acts. Since the ruling of the UK Supreme Court that the legislation was outside the competency of Holyrood, the Scottish Government has amended the Bill and it is due to be brought back to the Scottish Parliament for reconsideration on 14 September. Whatever this long-awaited day brings, the work local authorities have invested in learning about children’s rights and planning for incorporation will not be in vain. Scotland certainly does not lack the political will to incorporate children’s rights into Scots law and where there is a will, there is a way. Local authorities need to keep moving forward on this journey without losing momentum and rolling back on the progress made so far. Scotland’s children deserve a local government that listens to them and champions their rights.
If you have any questions about the UNCRC or would like support to implement its principles into your work, please contact the Improvement Service directly. There is also a Children’s Rights in Scotland group on the Knowledge Hub, where staff from local government, the public and third sectors can share best practice and discuss new developments.