Explainer Series – The UNCRC (Incorporation) (Scotland) Act 2024
The UNCRC (Incorporation) (Scotland) Act 2024 came into effect in July 2024, let’s take a look at what this means.
Background
UNCRC refers to the United Nations Convention on the Rights of the Child. The UNCRC (Incorporation) (Scotland) Act 2024 was preceded by the Children and Young People (Scotland) 2014 Act, the 2014 Act brought some aspects of the UNCRC into Scots Law however in terms of protecting children’s rights only went as far as ‘due regard’.
This means that those in power only had to consider children and young people’s rights in decision-making with no legal duty to actually do anything about it so long as they can show some consideration has taken place.
The UNCRC Act comes after years of campaigning from children and young people’s organisations and activists to bring the UNCRC directly into Scots Law (this is known as incorporation) so that children and young people’s rights are written into law and able to be upheld in Scottish courts.
Scottish Parliament originally voted unanimously to pass the original UNCRC Bill on the 16th of March 2021. However, in late March 2021 it was referred to the UK Supreme Court by the UK Government due to concerns from UK Government law officers that the Bill overstepped Scottish Parliament’s devolved powers.
After a lengthy period of consideration, in October 2021 the UK Supreme Court ruled that the Bill did go beyond the powers of Scottish Parliament and sent it back to Scottish Parliament to be amended.
The Supreme Court stated that incorporation of the UNCRC was not in itself an issue however it highlighted a few areas that could impact on reserved powers/UK Government.
These include:
- The Bill had very broad definition of ‘public authority’ which could have included UK authorities working in Scotland on issues relating to reserved powers
- The Bill would have given Scottish courts the ability to reinterpret UK laws to make them compatible with the UNCRC. This could change the meaning of the original law meaning that UK Parliament’s powers would be compromised.
- The Bill would have given Scottish courts the ability to make ‘declarations of incompatibility’ and to ‘strike down’ laws that they see as incompatible with the UNCRC. This could have included UK law and again would compromise UK Parliament’s powers.
The Bill was amended to resolve these areas of conflict hence why the version of the Act we have now is restricted in the areas it applies to.
The Scottish Parliament considered the Bill once again and voted unanimously to pass it on the 7th of December 2023. The Bill then received Royal Assent in January of 2024 before coming into force officially as the UNCRC (Incorporation) (Scotland) Act 2024 on the 16th of July 2024.
What is it?
The UNCRC is the United Nations Convention on the Rights of the Child. It applies to all children and young people under the age of 18 and sets out the rights that need to be upheld in order for a child or young person to survive, develop and thrive. There are 42 rights as well as 12 supporting articles that set out how governments can make these rights available to all children and young people.
Some of these rights are:
- The right to education
- The right to have a say in all matters that affect you and to have your opinion taken seriously
- The right to reliable information in a way that is accessible and understandable
More information on the articles can be found here from CYPCS.
It is an international agreement that has been signed by almost every country in the world aside from the USA. The document is legally binding at an international level however, children and young people as well as academics and others working to support rights have argued that incorporation is necessary to really make sure that the UNCRC can work in practice. You can read more about why incorporation matters here.
The UNCRC Act now brings children and young people’s rights into Scots Law and means that Scottish courts can take action in some instances where rights have not been respected.
It places duties on Scottish public authorities such as the Scottish Government, local councils, the NHS, police and social housing providers. This may include third sector organisations if they are contracted by a public authority to deliver public services.
These duties include:
- Knowing and understanding the UNCRC
- Considering the impact that their actions might have on children and young people’s rights
- Acting in a way that is compatible with the UNCRC rights where relevant*
- Regularly publishing reports on the actions taken and what actions are planned to further children and young people’s rights under the Children’s Rights Scheme
*Note: In order to comply with the Supreme Court ruling, ‘where relevant’ refers to “when public authorities are delivering duties under powers in an Act of the Scottish Parliament.” Read more here on the Scottish Government website.
MSPs must also make a statement of compatibility with the UNCRC when they are introducing new Bills to Scottish Parliament.
In practice, this can look like carrying out children’s rights and wellbeing impact assessments (CRWIA) and prioritizing participation and consultation in their activities
Where rights have not been respected, complaints can now be brought to the Scottish Public Authorities Ombudsman or in some cases, legal proceedings can be brought against the public body.
How does this affect my work in the third sector?
If you work directly with children and young people you are likely already aware of the UNCRC Act and the impacts on your work with the Act strengthening accountability and complaints mechanisms via Scottish bodies/courts. The Act should provide further routes to participation, advocacy and justice for the children and young people where these issues are the responsibility of a public body. Where rights are not being met, children and young people can point to CRWIAs and the Children’s Rights Scheme as evidence of planned action not being upheld or of misreporting of information.
On a wider scale, this supports the move towards organisations taking a human rights and equalities 1st approach. Children’s rights are human rights and protecting the rights of children and young people are important for supporting the journey to stronger rights knowledge, mainstreaming best practice and upholding accountability/justice for everyone.
The UNCRC Act is a very new piece of legislation and there is still much work to be done on data gathering and monitoring around breaches of children and young people’s rights before the full effectiveness of the Act can be seen.
Who should I go to for more information?
If you are a third sector organisation that delivers public functions on behalf of a public body and want to find out more about your duties, the Improvement Service has a comprehensive set of resources on how to prepare for the UNCRC Act.
Even if the Act does not apply to you, you can still bring your organisation up to speed with the UNCRC and children’s rights based approaches:
For further information and updates on the rollout of the act, see below:
