Scottish ministers have failed to budget adequately for incorporating the UN Convention on Children's Rights into Scots law, according to the Faculty of Advocates in written evidence published today.
Faculty's submission to the Scottish Parliament’s Equalities & Human Rights Committee, which is considering the bill at stage 1, describes the Government’s estimate of £2m as the expected costs of the bill as "unrealistic".
While incorporation of the UNCRC, which Faculty supported in an earlier consultation, should make it easier for children to access their rights, "the financial consequences are potentially very significant and likely to be underestimated in the financial memorandum", the submission states.
Describing the Convention as proceeding on a "maximalist approach", Faculty explains: "The Convention provides for very general and broadly stated rights to education, housing, health care, standard of living, protection from abuse and injury, and many other rights… there are very likely to be many matters of interpretation which arise, which have the potential to generate a considerable quantity of litigation, with significant cost implications, both in terms of the litigation itself, and in terms of the resulting practical consequences.
"We do not consider that the £2m budget set out in the financial memorandum is realistic. The budget does not take into account the cost to public authorities of fulfilling their obligations in terms of children accessing their rights under the bill. The budget does not factor in the cost of litigation to public authorities, the Scottish Legal Aid Board and the Children’s Commissioner."
Advocates also fear that the bill's proposed extension of time limits within which public authorities could be taken to court to enforce children’s rights – currently three months for judicial review and one year in other litigation – is "impractical at a number of levels", as public authorities often have to make "immediate and difficult decisions regarding the care or education of children, at specific points in time".
They propose: "Were the time limits to remain three months and one year, with discretion to extend, with an express requirement to have regard to the fact that the applicant is under the age of 18 when deciding whether a late claim could be made, that would permit the court to balance all the relevant considerations, with a particular focus on the rights and interests of children."
The submission further warns of possible difficulties in interacting with other human rights, such as were experienced with the named person scheme, and that consideration needs to be given as to how non-lawyers "will be assisted when there is a dilemma of this nature".
Faculty further expresses a concern about the court's proposed strike-down powers in relation to legislation, once the UNCRC and the European Convention on Human Rights are both in force, if legislation promoting rights under one Convention is adverse to rights under the other.