A new Bill which would allow children to take public bodies to court for breaches of their rights by incorporating the United Nations Convention on the Rights of the Child (UNCRC) into Scots law should be extended to include private sector and voluntary organisations who deliver public services, according to MSPs.
The Scottish Parliament’s Equalities and Human Rights Committee said it supports the general principles of the proposed legislation, but called for the definition of public authorities to be widened to ensure organisations such as private schools and private housing, residential care and childcare providers are not excluded from the legal obligations in the UNCRC.
The United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill legally obliges public authorities – including Scottish Ministers – to respect children and young people’s rights, placing them under a duty not to act incompatibly with the UN Convention.
In its stage 1 report, the Committee recommended that the Scottish Government consults the main stakeholders to investigate how the definition of a so-called “hybrid public authority” could be tightened to avoid similar issues arising as those experienced with the Human Rights Act 1998, where courts have defined the term narrowly and exempted private or voluntary bodies which carry out public functions.
Under the Bill, children and representatives acting on their behalf will be able to challenge public authorities in court for infringing their rights, and the new legislation will allow the courts to strike down legislation that is incompatible with any UNCRC requirements.
However, submissions to the Committee raised concerns about the accessibility of the existing courts and tribunals service to children, and the report called on Scotland’s top judge to reflect on this evidence and to provide an update on progress being made towards developing a “child-friendly” court system in preparation for the new legislation.
MSPs also urged the Scottish Government to amend the Bill so that courts and tribunals “must”, rather than “may”, take into account the whole of the text of the UNCRC and the first two optional protocols when determining a case, and to require courts and tribunals to ask for the child’s views on what would constitute an “effective remedy” in their case.
The Committee’s report further recommended that the Scottish Government amends the commencement provision at stage 2 to ensure the Bill comes into effect six months after Royal Assent.
The Bill also imposes a requirement on Scottish Ministers to make a Children’s Rights Scheme to set out how they will comply with the duties in the UN Convention, but MSPs want the scheme strengthened to include measures to support children with protected characteristics and vulnerable groups, access to advocacy, legal aid, human rights education and a child-friendly complaints mechanism.
Committee Convener, Ruth Maguire MSP, said:
“This is a landmark piece of legislation which has the potential to put children’s rights at the heart of public authority decision-making. However, we believe – as the evidence to the Committee has shown – that there are areas where the Bill can be improved.
“The Committee’s report calls on the Scottish Government to explore how the definition of a public authority can be amended at stage 2 to include those private sector organisations which provide public services, in accordance with the spirit and intention of the Bill.
“We also make recommendations aimed at improving access to justice for children and young people and ensuring judicial remedies for infringements of children’s rights are effective in practice.
“It is vital that children have their rights protected, respected and fulfilled as a matter of urgency, which is why we have urged the Scottish Government to amend the commencement provision to ensure this legislation come into effect six months after the Bill receives Royal Assent.”
A “child-friendly” version of the report, which has been published alongside the stage 1 report, can be accessed via the Committee’s Bill webpage.
The UN Convention on the Rights of the Child (UNCRC) was adopted by the General Assembly of the 1989 and ratified by the UK Government in 1991, since then the UK has been obliged under international law to give effect to the rights set out in the UNCRC. It sets out the civil, political, economic, social and cultural rights that all children are entitled to and is the most widely ratified human rights treaty in the world.
The UK has also signed two out of three optional protocols: (1) on the involvement of children in armed conflict; and (2) on the sale of children, child prostitution and child pornography. The third optional protocol, which allows complaints to be made to the UN Committee on the Rights of the Child, has not yet been signed by the UK. While the UK is bound by the UNCRC in international law, because the UNCRC has not been incorporated into domestic law, those rights are not part of the law which can be enforced directly in Scottish courts.
The rights in the UNCRC, which consists of 54 articles, are guaranteed to every child whatever their ethnicity, gender, religion, language, abilities or any other status.
The United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill is a Scottish Government Bill. It was introduced by the Deputy First Minister and Cabinet Secretary for Education and Skills, John Swinney MSP in the Scottish Parliament on 1 September 2020 and referred to the Equalities and Human Rights Committee (“the Committee”) as lead committee at Stage 1.
To inform its scrutiny of the Bill, the Committee issued a call for evidence on 7 September 2020, which closed on 16 October 2020. The Committee received 153 written submissions on the Bill, about two thirds of these were from a range of organisations in the public and third sector. Where permission has been granted, these submissions are available on our website along with a summary of written evidence.
In addition to this consultation work, the Committee received more than 50 written responses to a dedicated call for views aimed at children and young people. Submissions were received from children and young people as individuals, or as part of a group such as a primary school, high school, modern apprentices, and through activities with other children’s organisations.
The Committee took oral evidence on the Bill at four meetings during November and December 2020. Links to official reports of those meetings are available here.
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