Reconsideration of the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill – time for a Scottish Children’s Code?

By Michelle Donnelly - Posted on 17 November 2023

This post explores an attempt to directly incorporate the United Nations Convention on the Rights of the Child (CRC) into domestic law within a devolved administration, and novel use of the Scottish Parliament’s reconsideration procedure to amend the CRC (Incorporation) (Scotland) Bill. The Scottish Parliament is urged to accept amendments to the Bill, even if this results in a reduction in the Bill’s overall coverage. Development of a Scottish Children’s Code could provide a fruitful means of enhancing coverage beyond the Bill’s enactment.

The incorporation Bill and Supreme Court challenge

After a lengthy hiatus, the Scottish Parliament has agreed to consider amendments to proposed legislation seeking to incorporate the CRC into Scots law. Having been passed unanimously by the Scottish Parliament in March 2021, the CRC (Incorporation) (Scotland) Bill was later referred to the Supreme Court by the UK Government. The Bill aims to incorporate the CRC directly into Scots law to the maximum possible extent within the confines of Scottish devolution, following a broadly similar model to incorporation of the European Convention on Human Rights into UK law by the Human Rights Act 1998. Amongst other things, this would allow for direct enforcement of CRC rights in the Scottish courts.

The Supreme Court held that key aspects of the Bill went beyond the devolved powers of the Scottish Parliament under sections 28 and 29 of the Scotland Act 1998. Although not without criticism, the consequence of the Supreme Court’s decision was that the Bill could not proceed in its passed form. The judgment necessitated changes to four important sections (ss. 6 and 19-21), relating to certain compatibility duties and powers discussed below, to bring the Bill within the parameters of devolved legislative competence.

The Supreme Court challenge to the Bill is ultimately a constitutional one relating to the devolution settlement in the UK.  The challenge concerned a matter of constitutional and administrative law, yet the Bill itself is deeply connected to child law and children’s human rights. The Supreme Court judgment sets the limits of Scottish devolution but nevertheless indicates that the Scottish Parliament is free to incorporate the CRC, and other international human rights treaties, into Scots law. However, the way the Scottish Parliament does so must fall within the devolution settlement, as provided by the Scotland Act 1998, and as narrowly interpreted by the Supreme Court.

The Supreme Court’s restrictive interpretation of the Scottish Parliament’s devolved legislative authority makes a maximalist approach to CRC incorporation in Scots law impossible to realise in practice. The children’s rights experience is therefore instructive to wider plans to incorporate a broader range of human rights treaties into Scots law, as far as possible within the limits of devolved competence, under a Human Rights Bill for Scotland.   

Incorporation of international human rights instruments into national law is a key demand of human rights bodies, like the UN Committee on the Rights of the Child. Incorporation serves to implement international human rights standards at the domestic level; providing greater force to protect, respect and fulfil human rights within the national legal order. Some benefits of incorporation are to embed human rights-based approaches in governance, improve accountability and strengthen enforcement in the domestic legal framework. Incorporation is likely to raise the profile of international human rights and develop a human-rights based culture within the national polity.

Legal incorporation is therefore recognised as a leading way to implement the CRC and operationalise children’s human rights. Where countries have incorporated or given systematic legal status to the CRC, children's rights have been found to be better protected in law, policy and practice. The UN Committee on the Rights of the Child has repeatedly called on the UK government to introduce legislation to incorporate the CRC throughout the UK. In its recent Concluding Observations, the Committee urged that amendments to the CRC (Incorporation) (Scotland) Bill were brought forward expeditiously to address the Supreme Court’s competency concerns that are necessary for enactment. It is against this backdrop that the Scottish Parliament has invoked, for the very first time, its reconsideration procedure to amend the Bill.  

Reconsideration amendments

On 13 September 2023, the Scottish Parliament agreed to consider amendments to the Bill. The initial debate to enter the reconsideration phase reiterated the cross-party support for CRC incorporation. The proposed amendments were subsequently laid before the Scottish Parliament. The amendments will be debated in due course and are not analysed in detail here. Rather, the general approach and implications of the proposed amendments are considered.

The tabled amendments principally relate to sections of the Bill held to be constitutionally problematic by the Supreme Court. Chiefly, this involves the duty of public authorities to act compatibly with CRC requirements (s. 6); the duty of the Scottish courts to read and give effect to legislation in a way that is compatible with CRC requirements (s. 19); the power of the Scottish courts to strike down legislation that is incompatible with CRC requirements (s. 20); and, the power of the Scottish courts to declare that legislation is incompatible with CRC requirements (s. 21).

In each case, the proposed amendments restrict the relevant provisions of the Bill to functions conferred by, or legislation originating from, an Act of the Scottish Parliament. Legislation originating from, or functions conferred on public authorities by, Acts of the UK Parliament are not covered by the amended Bill, regardless of whether they operate in areas devolved to the Scottish Parliament under Schedule 5 of the Scotland Act 1998. Amendments to legislation originating from Acts of the UK Parliament but subsequently modified by Acts of the Scottish Parliament in devolved areas are likely to be excluded too. The overall effect of the proposed amendments, necessitated by the Supreme Court judgment, is to significantly limit the scope of the incorporation Bill.

The Scottish Government’s approach to amending the Bill has been informed by three guiding aims. First, protecting children’s rights to the maximum possible extent, in terms of providing maximum legislative coverage in the devolved context. Second, minimising the risk of a future reference to the Supreme Court to avoid (further) implementation delays. Third, ensuring the legal framework is as accessible as possible for users – particularly children and young people. While the proposed amendments may well mitigate against a further Supreme Court challenge, it is highly doubtful that the first and third aims can be achieved when the implications of the amendments are explored.  

The implications of proposed amendments

The major implication of the proposed amendments is to limit the coverage of the Bill and, by extension, weaken the scope of protection provided by its model of incorporation. Coverage is to be limited to Acts of the Scottish Parliament and will not extend to Acts of the UK Parliament which operate in areas of devolved competence. The effect will be that various pieces of legislation significantly impacting on children and young people’s lives will fall outside the Bill’s scheme of protection.

Leading examples include the Education (Scotland) Act 1980, the Age of Legal Capacity (Scotland) Act 1991, and the Marriage (Scotland) Act 1977. The Education (Scotland) Act 1980 consolidates various enactments relating to education provision, duties and entitlements in Scotland. As such, it is highly relevant to CRC requirements pertaining to the child’s right to education, amongst other rights. The Age of Legal Capacity (Scotland) Act 1991, which makes provision for the legal capacity and representation of children, is deeply connected to CRC requirements relating to children’s autonomy and evolving capacities. The Marriage (Scotland) Act 1977 regulates the constitution of marriage in Scotland and specifies a minimum age of marriage regarded by some as inconsistent with CRC requirements.

One of the most glaring examples of a regrettable loss of coverage is the Children (Scotland) Act 1995, which regulates the private law of parent and child in Scotland, as well as making important provision for care-experienced children and alternative care arrangements. Another noteworthy example is the Criminal Procedure (Scotland) Act 1995, which permits the prosecution and detention of children according to criminal procedures that cannot be regarded as rights-respecting. These are just some illustrative examples.

Each of the above-mentioned legislative schemes, which apply exclusively to Scotland and operate in clearly devolved areas like education, family law, social services and justice, pre-date the establishment of the Scottish Parliament and originate from Westminster Acts. As such, children and young people will not be able to access the incorporation Bill’s compatibility protections and enforce their CRC rights in relation to the relevant enactments.

Important Acts of the Scottish Parliament, which amend earlier Acts of the UK Parliament in devolved areas, may not be covered by the revised incorporation Bill either. However, the legal position is far from clear. The applicability of the compatibility duties and powers in the amended incorporation Bill appear to turn on whether relevant statutory words derive from the original Act of the UK Parliament or are inserted into the UK Act by another Act of the Scottish Parliament or Scottish statutory instrument (the former being potentially excluded from the incorporation Bill; the latter being potentially included). However, the explanatory notes accompanying the proposed amendments are contradictory and suggest that text inserted into a UK Act by an Act of the Scottish Parliament will not be subject to the incorporation Bill.

A good example of affected legislation is the recently passed Children (Scotland) Act 2020, which significantly modifies the Children (Scotland) Act 1995 via a mixture of amending provisions and new insertions. Amongst other things, the 2020 Act gives greater effect to the child’s right to be heard in private law court actions relating to the upbringing of children and enhances the rights of siblings in child protection processes. Another noteworthy example is the Children (Care and Justice) (Scotland) Bill. This emerging piece of proposed legislation seeks to enhance the rights of children in conflict with the law by, for example, making long-overdue changes to the legal framework for prosecuting children in adult criminal courts under the Criminal Procedure (Scotland) Act 1995. It is paradoxical that these amending schemes are designed to give greater effect to children’s rights in key areas where Scots law falls short of CRC requirements when it now appears that aspects of the relevant amending legislation may not fall within the incorporation Bill.

The Scottish Government’s proposed approach to amending legislation is cautious and clearly conservative. It is one which is motivated by the desire to avoid a future challenge in the Supreme Court but may also undermine children’s rights protection for those who are most vulnerable to human rights violations. An argument could be made that new provisions inserted into a UK Act by a Scottish Act are self-standing legislation of the Scottish Parliament, so should fall within the scope of the incorporation Bill. The counter argument is that this obscures completely what is, and what is not, to be subject to the Bill’s compatibility duties and powers. At the very least, the proposed amendments create ambiguities in application.

Another implication of the proposed amendments is a loss of clarity, coherence and consistency in the model of incorporation. Rather than representing a clear, coherent and comprehensive approach to CRC incorporation, the Bill’s model is becoming increasingly complex, piecemeal and fragmented.  It cannot be regarded as accessible, raising significant access to justice concerns. These concerns are exemplified by proposed changes to the duty of public authorities to act compatibly with CRC requirements. Identifying the applicability of this duty by reference to the statutory conferral of public authority functions will be extremely difficult to manage in practice. It will likely lead to confusion for rights-holders and duty-bearers alike.

It is true that the proposed amendments are still to be debated with further possible changes arising from the reconsideration process. Nevertheless, the amendments necessitated by the Supreme Court judgment have led to an inevitable watering down of the incorporation Bill. Consequent implementation delays carry a risk of regression. The Scottish Government has been accused of prevarication and delay and is urged to swiftly progress the Bill’s reconsideration to provide a foundation for embedding children human rights in Scots law. This foundation is not as strong as originally planned but it is one that can be built upon in the future.

All is not lost

When the Supreme Court handed down its judgment, commentators asked: what remains? It is important to recognise that, despite the inherent constitutional challenges, all is not lost. Some important aspects of the incorporation Bill are largely unaffected by the Supreme Court judgment.

For example, this includes provisions in Part 3 of the Bill involving: development of a children’s rights scheme to promote the participation of children in public decision-making, raise awareness of children’s rights, consider children’s rights in budgeting processes, and contribute to national outcomes for children (s. 13); enhanced use of child rights and wellbeing impact assessments in relation to any proposed Acts of the Scottish Parliament, Scottish statutory instruments and strategic decisions of the Scottish Government relating to the rights and wellbeing of children (s. 14); and, reporting duties for certain Scottish authorities concerning compliance with CRC requirements (s. 15). These provisions are important for embedding a rights-based culture in law-making, policy development and governance for children and young people in Scotland.

The culture shift promised by CRC incorporation is already evident in quarters of Scottish society. The prospect of incorporation has mobilised public authorities and civil society organisations to entrench children’s human rights in their processes, policies and practices, and hold the Scottish Government to account. An excellent example is work undertaken by the Scottish Public Services Ombudsman to develop a child-friendly complaints procedure, informed by CRC requirements, to strengthen children’s rights to remedy and redress. Consistent lobbying by bodies like the Children and Young People's Commissioner Scotland, Together (Scottish Alliance for Children's Rights) and the Scottish Youth Parliament has ensured that CRC incorporation remains on the political agenda.

It must also be remembered that some impactful areas are entirely regulated by Acts of the Scottish Parliament so fall within the scope of the Bill’s compatibility duties and powers. A good example is the Children’s Hearings (Scotland) Act 2011, which regulates our integrated care and justice system for children in need of compulsory state intervention in Scotland. Another is the Age of Criminal Responsibility (Scotland) Act 2019, which provides a minimum age of criminal responsibility below that recommended by the UN Committee on the Rights of the Child. Children will be able to directly enforce their CRC rights through the incorporation Bill in respect of such Scottish enactments.

Equally, new laws originating from the Scottish Parliament in the future will be covered by the incorporation Bill and efforts will rightly be made to ensure consistency with CRC requirements here. Such emerging laws should be created under new, standalone Acts of the Scottish Parliament, rather than via any consolidating or amending enactments, to achieve this effect.

The legislative implications of the proposed amendments have been recognised by Together, which has repeatedly called on the Scottish Government to undertake an audit of all Acts of the UK and Scottish Parliaments operating in areas of devolved competence and review them in light of CRC requirements. This exercise has much merit in the revised incorporation landscape and should be urgently acted upon to identify priority areas for reform and potential opportunities for enhancing coverage.

Overall, the proposed amendments to the incorporation Bill appear to meet the aim of reducing the risk of a future reference to the Supreme Court but fall short of the aims of maximising legislative coverage and making the legal framework user-friendly. There may, however, be another way to maximise the Bill’s coverage and enhance accessibility of its incorporation model.

Time for a Scottish Children’s Code?

To increase coverage and improve accessibility, a Children’s Code for Scotland could be developed to bring together all devolved aspects of Scots child law within a single Act of the Scottish Parliament. This has two clear benefits.

First, the great majority of Scots child law, except for clearly reserved matters, would fall under the compatibility duties and powers in the incorporation Bill. All relevant enactments could be consolidated, and all relevant functions conferred on public authorities, under the terms of a Scottish Children’s Code. Future amendments to a Scottish Children’s Code would be covered by the compatibility duties and powers too.

Second, the law would become more user-friendly, meaning that access to justice would be improved. The totality of the devolved legal framework relating to children would be captured in a single, comprehensive enactment of the Scottish Parliament. This would promote accessibility and benefit all users of the law, especially rights-holders and duty-bearers.

The idea to develop a Scottish Child and Family Code was first advanced in the Scottish Law Commission’s 1992 Report on Family Law. In the intervening years, Scots child law has significantly evolved and now spans myriad relevant enactments. Developing a Scottish Children’s Code would have the benefit of consolidating and clarifying the law, whilst also bolstering efforts to incorporate children’s rights to the maximum possible extent by enhancing coverage and coherence.  The development of a Scottish Children’s Code is admittedly a project of significant scope and magnitude. However, it is one that is worth the investment to realise children’s human rights.

The consequence of the Supreme Court’s decision is to limit the scope of the incorporation Bill and it should be so limited, now. Let’s not have Scotland’s children wait even longer for incorporation of their rights. The incorporation Bill provides a foundation upon which to build and grow.

Alongside reconsideration of the Bill, a Scottish Children’s Code could be worked on. This is a longer-term goal but one which would help to deliver on the cross-party commitment to maximalist entrenchment of children’s rights in Scots law under the devolution settlement. Members of the Scottish Parliament and public alike ought to be mindful of that commitment and hold the Scottish Government to account in delivering it. Developing a Scottish Children’s Code could be the next logical step on Scotland’s children’s rights implementation journey.