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By Robyn Taylor

The United Nations Convention on the Rights of the Child (the UNCRC) is an international treaty which guarantees many economic, social and cultural rights for children and young people including rights to heath, social security, adequate standard of living, education, culture, and play. Bringing this Convention into law in Scotland could be transformative in terms of how the government and public authorities make laws and decide polices impacting on the lives of children and young people.

For more on this, check out our Guest Blog from the Scottish Human Rights Consortium on Devolution and Human Rights.

Plain English summary

On 16 March 2021 the Scottish Parliament unanimously passed the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill (the UNCRC Bill). 

The the UNCRC is an international treaty which although ratified by the UK in 1991 (in fact it is the most ratified treaty in the world), remains unincorporated. Because of the ‘dualist’ legal system in the UK, this means that courts have no jurisdiction to construe or apply it – it is non-justiciable. Moreover, it does not create rights and obligations that children can directly benefit from or rely on (see Lord Kerr in R (S G) v Secretary of State for Work and Pensions).

The Scottish Parliament, exercising its ability to make laws (s28(1) Scotland Act), sought to bring the UNCRC into Scots law. The Scotland Act also provides that Scotland should observe and implement the UK’s international obligations. 

However, the ability of Scottish Parliament to legislate is subject to certain qualifications, known as ‘legislative competence’.[1] In order to avoid falling outside of Scottish legislative competence, the UNCRC Bill was intended to leave out the parts of the UNCRC that the Scottish Parliament considered to fall within a ‘reserved matter’.[2] Scottish Parliament also considered that s.101 of the Scotland Act, which provides that any provision of a Bill which could be read in a such way as to be outside competence should be read as narrowly as is required for it to fall back into competence, might save the UNCRC Bill.

On 12 April 2021, a reference of certain provisions of the UNCRC Bill was made by UK Law Officers to the UK Supreme Court. The provisions referred to the Supreme Court were: section 6 (duty on public authorities); and sections 19 to 21 (the interpretation duty and judicial powers of ‘strike down’ and ‘incompatibility declarator’).

A hearing before the UK Supreme Court took place on 28 and 29 June 2021 to decide whether these provisions would be within the legislative competence of Scottish Parliament pursuant to s.33(1) Scotland Act 1998 (the Scotland Act).

HELD: The Court decided that four provisions of the UNCRC Bill would modify section 28(7) of the Scotland Act and, for that reason, would fall outside the legislative competence of the Scottish Parliament.

Question 1 on the interpretation of legislation (s.19(2)(a)(ii) UNCRC Bill)

Section 19(1) of the UNCRC Bill– the interpretation duty – is modelled on s.3 of the Human Rights Act 1998 (the HRA) and imposes a similar duty of interpretation upon the courts. This is confirmed by the Explanatory Notes on the Bill, which state at para 74:

“Section 19(1) requires that certain types of legislation must, if possible, be given an interpretation that is compatible with the UNCRC requirements. This interpretative obligation is analogous to the obligation created by section 3 of the Human Rights Act 1998, the effect of which has been the subject of judicial consideration in a number of cases (see for example Ghaidan v Godin-Mendoza [2004] UKHL 30; [2004] 2 AC 557).”

In acknowledging the parallels between s.19 and s.3 of the Human Rights Act, the court noted that the obligation imposed by s.19 would be much more far-reaching than the ordinary effect of unincorporated international treaties on the interpretation of legislation. For context, it is worth noting here, that increasingly the Supreme Court is seen to be more restrictive generally in its approach to the domestic status of international law.   

The effect of s.19 would require the courts, in certain circumstances, to give statutory provisions a meaning and effect which conflicts with that intended by the UK Parliament (s.19(2)(a)(ii)). A qualification upon the UK Parliament’s legislative power would be imposed as a result. Accordingly, as it would impliedly amend section 28(7) of the Scotland Act, section 19(2)(a)(ii) of the UNCRC Bill would be outside the legislative competence of the Scottish Parliament.

Question 2 on the ‘strike down declarators’ (s.20(10)(a)(ii) UNCRC Bill)

While s.19 of the UNCRC Bill is modelled on s.3 of the HRA, ss. 20 and 21 are modelled on s.4 of that Act, which enables the courts to make a declaration of incompatibility where legislation cannot be interpreted compatibility with Convention rights, even with recourse to s.3. However, s.20 UNCRC Bill goes further than s.4 of the HRA, insofar as it gives the courts the power to make a declarator stating that a provision of relevant legislation, including an Act of Parliament (s.20(10)(a)(ii), is incompatible with the UNCRC requirements and  therefore ceases to be law, to extent of incompatibility, provided the provision was enacted before the s.20 of the Bill comes into force. This position is different to s.4 of the HRA which confines itself to a declaration of incompatibility which does not affect the validity, continuing operation or enforcement of the provision to which it is given (s.4(6)(a)). Leaving it up to Parliament as to what action it should take in respect of a declaration of incompatibility, if any.

The Court pointed out that allowing existing legislation to remain in force unamended is one of the ways in which the UK Parliament exercises its power to make laws for Scotland. Making the continuation in force of Acts of the UK Parliament conditional on the courts’ decision that they are compliant with the UNCRC would therefore affect the power of the UK Parliament to make laws for Scotland. Accordingly, section 20(10)(a)(ii) of the UNCRC Bill would be outside the legislative competence of the Scottish Parliament, because it would modify section 28(7) of the Scotland Act.

Question 3 on ‘incompatibility declarators’ (s.21(5)(b)(ii) UNCRC Bill)

Akin to s.4 of the HRA, s.21 of the UNCRC Bill confers on the courts the power to issue a declarator that the impugned legislation is incompatible with UNCRC requirements, including in respect of Acts of Parliament (s.21(5)(b)(ii) which receive Royal Assent after s.21 comes into force.

Such a declaration would affect the power of the UK Parliament to legislate for Scotland, insofar as it would impose political pressure on the UK Parliament to amend or repeal the relevant Act to remove the incompatibility, would make it difficult if not impossible for public authorities to continue to implement the relevant Act, and could result in the Scottish Ministers adopting regulations to amend or repeal the relevant Act. Accordingly, section 21(5)(b)(ii) of the UNCRC Bill would be outside the legislative competence of the Scottish Parliament, because it would modify section 28(7) of the Scotland Act.

Question 4 on ‘acts of public authorities to be compatible with the UNCRC requirements’ (s.6 UNCRC Bill)

Section 6 UNCRC Bill provides that it is unlawful for a public authority to act in a way which is incompatible with the UNCRC Bill requirements. If it is believed to have done so, proceedings can be brought against it under s.7, and damages can be awarded under s.8. The only exceptions are the Scottish Parliament and persons carrying out functions with proceedings in the Scottish Parliament. 

In relation to s.6, the court was concerned that, on its face, compliance with the UNCRC requirements would apply to all public functions required or authorised by parliament, whether those functions fall within the legislative competence of Scottish Parliament or not. The court did not accept that it could be properly left to the courts to impose qualifications which bring the s.6 provision back into Scottish legislative competence, this was a matter for legislators.

Conclusion and next steps

While the judgment means that the UNCRC Bill could not receive Royal Assent in its current form, the majority of the obligations under the Bill remain intact and implementation of the UNCRC continues. It also confirms that human rights do not fall into reserved matters and Scotland is free to incorporate international treaties within legislative competence. Legislators will now have to revisit the issue of enforcement. See this blog from the Human Rights Consortium Scotland for more information.

The UNCRC Bill should be seen a wider context of Scotland’s human rights agenda, including its plans for a new Human Rights Bill which seeks to incorporate specific rights from: the International Covenant on Economic, Social and Cultural Rights; the Convention on the Elimination of All Forms of Discrimination against Women; the Convention on the Elimination of All Forms of Racial Discrimination; and the Convention on the Rights of Persons with Disabilities. The proposed Human Rights Bill is also to include a right to healthy environment and new rights for elderly people and LGBTI people.

Although there are many areas of overlap in terms of the rights guaranteed under the ECHR the UNCRC Bill[3], the UNCRC Bill contains a more proactive framework for developing a culture around the protection of fundamental rights. For instance, the UNCRC Bill includes a Children’s Scheme (Part 3) that promotes and raises awareness of children’s rights (ss11-13); places a duty on Ministers to conduct child rights & wellbeing impact assessments (s.14); and requires compliance reporting by ministers and public authorities (ss.15-16).

The Scottish Government considers that the rights and obligations within the UNCRC are in alignment and supportive of rights under the ECHR. This is evident in the approach taken by the European Court of Human Rights to considering children’s rights. Incorporation of the UNCRC will, therefore, support better realisation of the rights of children under the ECHR.[4]

Image by Claire Eyheramen.

[1] For instance, the Scottish Parliament, cannot affect the power of the Parliament of the United Kingdom to make laws for Scotland (s.28(7)) nor can it make laws that is outside the legislative competence of the Scottish Parliament (s29(1)).

[2] Areas under the control of UK Parliament alone, for example, immigration, foreign policy and certain benefits and social security

[3] ECHR article 2 and UNCRC article 6 concern the right to life; ECHR article 3 and UNCRC article 37(a) concern the prohibition of torture and degrading treatment; ECHR article 5 and UNCRC article 37(b), (c) and (d) concern the right to liberty and security; ECHR article 6 and UNCRC article 40(i)-(v) concern the right to a fair trial; ECHR article 7 and UNCRC article 40(3)(b) concern the prohibition of punishment without law; ECHR article 8 and UNCRC article 16 concern the right to respect for private and family life; ECHR article 9 and UNCRC article 14 concern the freedom of thought, conscience and religion;  ECHR article 10 and UNCRC article 13 concern freedom of expression;  ECHR article 11 and UNCRC article 15 concern the freedom of assembly and association; ECHR article 14 and UNCRC article 2 concern the prohibition of discrimination

[4] Para 175, United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill Policy Memorandum.