Scottish ministers have committed to incorporate the United Nations Convention on the Rights of the Child into Scots law by the end of the current parliamentary session. This was confirmed to the Parliament on 20 November 2019, following a consultation (on which I wrote at Journal, June 2019, 20) on implementation in order to promote, secure and respect children’s rights in Scotland.
The timescale is unclear, but a general consensus from the consultation appeared to be that around two years should be sufficient for organisations to prepare. Any enactment may not be implemented immediately: the Children and Young People (Scotland) 2014, containing many diverse provisions covering services and support, is still only partly in force.
The Convention bill is, without doubt, going to be legislation for many years, therefore time and care need to be taken to ensure full compatibility with existing children’s and human rights and the duties of public bodies. Otherwise the Convention in Scots law may not be fully and properly upheld by the courts as intended.
Level of protection
Mid-2018, National Records of Scotland estimated that 17% of the population was under 16 years: a large enough proportion of our population to ensure they are heard and supported, with rights, which the Convention offers up to the age of 18 years.
Such a ceiling age will mean some existing legislation could be directly affected. For example, under the Education (Scotland) Act 1980 children are entitled to receive a school education up to 16 years (and to complete that education beyond that age). Article 24 of the Convention provides for “access” to education up to 18 years. What might be the implications of current provision being extended to age 18? Would children who left school before 18 be entitled to return, if they chose to, or receive other education provision?
The Government has indicated that the purpose of incorporation is to provide the highest level of protection for children’s rights, and where necessary will promote amendment to existing legislation (Deputy First Minister John Swinney, answering Alison Harris MSP, 20 November 2019). The approach will be “maximalist”, incorporating the Convention rights in full and as directly as possible; its language is therefore likely to be closely followed to ensure direct compatibility. There will be limitations due to current powers of the Parliament, but that will be addressed by the legislation being futureproofed for possible political changes (Scottish Government news release, 20 November 2019).
A maximalist approach will be of concern to many in a landscape of budgets shrunk or ringfenced to meet Government priorities. Article 4 requires states to fulfil children’s economic, social and cultural rights to the “maximum extent of their available resources”, and effective monitoring of resources crucial to protecting children from changes in economic policies or financial downturns (Lundy et al, The UN Convention on the Rights of the Child: a study of legal implementation in 12 countries, UNICEF, November 2012, 25). Whilst this was not fully addressed by the consultation, many respondents expressed concern about funding to provide training and raise awareness, as will be required to ensure effective implementation.
Consultation responses were wide and varied, with some 162 being received (29 from public bodies, 91 from the third sector and three from legal organisations, including the Law Society of Scotland and Faculty of Advocates). Responses were considered against three themes: (a) legal mechanisms for incorporating the Convention into domestic law; (b) embedding children’s rights in public services; and (c) enabling compatibility and remedies.
Interestingly, the most popular view expressed was that “the element of the framework that prohibits public authorities from acting incompatibly with the ECHR should be replicated” (consultation analysis, Theme 1, Q1), and that for incorporation to be meaningful, children’s rights must be enforceable in court. “In other words, rights must be justiciable and legal redress must be available for children’s rights to be fully protected”. One cannot argue with this, but surely for children there should be alternatives to courts, and earlier recourse available.
A suitable complaints system may resolve many issues for children and provide them with a simpler, more accessible route to justice. The Children and Young People’s Commissioner should be able to investigate complaints about policy or decision making as an alternative or precursor to court action, and make recommendations. These should be seriously considered as ways to uphold rights, as opposed to relying on a struggling legal aid system and complex legal processes, as faced by people in enforcing human rights. Child-focused complaints handling processes, by organisations expected to comply and uphold rights, would serve them well. Meaningful engagement with children on issues and policy at the earliest stage will ensure decisions that are more robust and less likely to lead to challenge.
From the consultation and ministerial statement there is a clear intended reliance on an already stretched judicial system to interpret the legislation and help determine appropriate allocation of funding by public bodies. The judiciary cannot be expected to examine various individual cases and public bodies’ finances in order to uphold children’s rights. This should happen at a grass roots level and with strong co-operation in decision and policy making. Best practice guidance on implementing and applying Convention rights may be required from Scottish Government following enactment.
The introduction of these rights will undoubtedly lead to strategic litigation (Lundy et al, 4), and how children will access justice, and legal aid funding, specialised solicitors and appropriate judicial training, are all issues to be addressed now. Research has shown that the extent to which children are able to bring judicial proceedings to uphold their rights can be contingent on levels of judicial consciousness and receptiveness to the notion of children as rights bearers, and examination of rights-based reasoning in administrative decision-making processes is essential (Lundy et al, 21).
It is also imperative that other future legislation is considered against the Convention rights. There has been strong support for a statement of compatibility when introducing bills to the Scottish Parliament, with courts having the power to “declare legislation incompatible, necessitating amendments to the legislation... [to] ensure children’s rights are at the forefront of legislative developments in Scotland, as long as there is sufficient scrutiny of declarations of compatibility” (consultation analysis, Theme 1, Q1). Many suggested that in general terms the Human Rights Act 1998 framework should be followed, as organisations and Government understand how this operates. The question remains, though, whether that will be sufficiently detailed to uphold the Convention. Certainly, the approach taken to considering human rights in impact assessments is seen as a workable and positive approach, with some respondents suggesting this should be a statutory duty. Whatever the approach, it must supplement current approaches and requirements in considering the impact on equality, the environment, human rights and poverty in policy and decision making.
The consultation did not address the issue that “devolved authorities [must] have the resources and support necessary for implementation”, and be prepared for success to be directly impacted through awareness, training, political will, the perceived relevance of human rights and efforts of coordination within government and between organisations (Lundy et al, 19). The importance of direct and ringfenced funding for public bodies to support implementation of the Convention cannot be overstated, whatever approach is settled on.
Engagement and enforcement
Engagement with children and seeking their views is essential. Over a quarter of respondents who provided comments “welcomed the Children’s Rights Scheme as a way of helping to create opportunities for children, young people and wider stakeholders to inform how the [Convention] is implemented. These respondents felt that children and young people should be consulted and meaningfully involved in the development and review of the Children’s Rights Scheme” (consultation analysis, Theme 2, Q13).
Article 12 supports the right of children and young people to express their views on all matters concerning them and to have those views given due weight in accordance with their age and maturity. Small steps are being taken to recognise this in court proceedings, through the current Children (Scotland) Bill, in civil cases where they could be affected, but more will be required to ensure successful direct relationships between children and government organisations. It may be that panels will be created to review policies, similar to housing association tenants’ panels which comment on documents, policy and practice. It is unclear how organisations will ensure effective engagement and who will take responsibility. Certainly, a children’s rights impact assessment should be done as early as possible in decision making or policy review, and regularly revised to ensure thorough consideration of the impact on children’s rights.
Rights in the Convention are to be directly enforceable in Scottish courts, and decisions of public bodies that affect children’s rights will be challengeable by judicial review.
Theme 3 in the consultation considered the thorny issue of whether there should be compensation where a child’s rights have been breached, in line with article 39. Many respondents supported this, suggesting that where there is a failure to address complaints or issues which lead to judicial challenge it will be appropriate to consider the question of compensation and determine, for example, what loss the child has suffered or the implications of the breach.
The Scottish Government appears fully committed to the Convention being incorporated in all its glory, subject to the constraints of reserved powers. It must tread carefully to ensure the legislation is as robust as possible, to avoid challenges of legislative competence. It should also pay heed to lessons learned by other countries in implementation – the financial burden, and training and awareness of the rights, must not be ignored or its success will be compromised. Organisations required to uphold the rights need to be supported, as do the judiciary, who will be expected to interpret and enforce the legislation. As one parent responded: “Will [the Convention] be rushed in because it’s the right thing to do, or because it’s right for the government’s profile? Rushed legislation will make this messy and full of loopholes” (consultation analysis, Theme 2, Q14).
Whilst it is commendable that the Convention is to be implemented in Scotland, it remains to be seen what real changes it will make for children. They will, of course, have the ability to challenge decisions and policy via the courts. There have however been fairly commendable efforts to date by the Scottish Government to support and protect children, so the real change will be ensuring that children have access and the ability to challenge decisions and enforce Convention rights.
Nicola Hogg is a solicitor accredited by the Law Society of Scotland as a specialist in child law