Explainer Series – UNCRC Incorporation Bill (Scotland)
The incorporation of the United Nations Convention on the Rights of the Child (UNCRC) into Scots Law: current status, next steps and implications.
The UNCRC Incorporation Bill (Scotland) is preceded by the Children and Young People (Scotland) 2014 Act which 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 have 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 new Bill 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.
Status:
Scottish Parliament voted unanimously to pass the 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 is being amended to resolve these areas of conflict.
Update 29/06/2023: On the 27th of June 2023, Cabinet Secretary for Social Justice, Shirley-Anne Somerville gave an update to Scottish Parliament on the status of the Bill. In her update, she reiterated Scottish Government’s commitment to incorporation but outlined a number of changes that have been made to the Bill in response to the Supreme Court verdict. Together have written a blog on these changes and what they mean for incorporation – read it here.
Next steps:
The Bill is expected to return to Scottish Parliament for parliamentary reconsideration after summer recess though the timeline is not set in stone.
Despite the legal challenges to formal incorporation, Scottish Government have been continuing with their 2021-24 UNCRC Implementation Programme and supporting third sector activity in this area.
How does this affect me?
If you work directly with children and young people you are likely already aware of the UNCRC Bill and the impacts on your work with the Implementation Programme already in motion. This Bill will likely build upon existing GIRFEC work while strengthening accountability and complaints mechanisms via Scottish bodies/courts.
If you don’t work with children and young people there may be less direct impacts however it is useful to keep an eye on developments as the Scottish Human Rights Bill will likely build upon learning from the UNCRC Incorporation Bill.
