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Our work on incorporation

Incorporation: the story so far

The United Nations Convention on the Rights of the Child (UNCRC) is an international human rights treaty. It sets out rights which every child is entitled to.

The UN adopted the UNCRC over 30 years ago in 1989. Since then, it has been signed up to by every country in the world except the USA.

The UK ratified the UNCRC in 1991, but none of its four countries have incorporated it into domestic law.

That includes Scotland.

And that means many of the protections the UNCRC contains are not accessible to Scotland’s children and young people.

But Scotland is in a unique position to introduce legislation that provides legal protections of these rights in Scots Law.

This process is called incorporation.

A:

The domestic laws of a country are laws that can be upheld in its courts.

Scots law is the kind of domestic law that’s enforced in Scotland’s courts.

If someone wasn’t keeping promises they’d made under an Act of the Scottish Parliament, or an Act of the UK Parliament that applies to Scotland, they’d be breaking domestic law, and so could be taken to a Scottish court.

If they weren’t keeping promises made under international law this couldn’t happen, unless those promises had also been written into domestic law.

A:

Often people want to get into groups to change things about how society works. These groups might be charities, non-governmental organisations, pressure groups or social movements. Collectively, these groups make up civil society.

Civil society doesn’t include:

  • organisations that are run for profit, such as private companies,
  • political parties and organisations run by the government,
  • independent institutions who monitor human rights— such as the Children and Young People’s Commissioner Scotland.

The Scottish Government has committed to incorporation

Following decades of campaigning by civil society and children’s commissioners – alongside the campaigning of children, young people and families – the Scottish Government has committed to incorporation of UNCRC into Scots law, before the end of the current Parliamentary session in 2021.

That means that it should have happened by the time Scotland next elects MSPs.

Deputy First Minister John Swinney MSP made this commitment on Wednesday 20 November 2019— International Children’s Day and the 30th anniversary of the adoption of the UNCRC. 

Reporting to the Scottish Parliament, he said:

“…The bill that I will introduce next year [to incorporate the UNCRC] will take a maximalist approach. In every case possible, we will seek to incorporate the convention’s articles in full and directly, using the language of the convention.”

In response, the Commissioner said:

“I warmly welcome the Scottish Government’s commitment to full and direct incorporation of the UNCRC before the end of this Parliamentary session.”

“I am encouraged that the Government has listened to the concerns of both my office and civil society around limiting protections to a suite of rights and has committed to putting the words of the Convention into Scots law. Words matter and the Articles contained within the Convention depend on each other for their full effect. Full and direct incorporation with justiciability for rights breaches is essential to properly deliver on children’s rights.”

“It is important that Scotland’s commitment to human rights leadership translates urgently into action. I look forward to continuing this work with both Government and civil society in the months ahead as legislation on incorporation comes before the Scottish Parliament.”

Why is incorporation urgent?

Because legal protections for children’s rights are more important than ever

Currently children’s rights have specific legal protections included in the EU Charter of Fundamental Rights. However, these may be lost at the end of the transition period of the UK’s departure from the European Union.

Because of the uncertainties and wider implications of Brexit, there is a need for urgency to ensure that a Bill is passed in this Parliamentary session to secure rights protections for children in Scotland.

Because children and young people demand it

Young people’s desire for incorporation has been put into a sharper focus through the Scottish Youth Parliament’s campaign Right Here, Right Now. This campaign began after more than 76% of the 700,000 young people who responded to the Youth Parliament’s 2016-21 manifesto agreed that the UNCRC ‘should be fully incorporated into Scots law’.

Children and young people have continued to advocate at the highest levels of government for their rights to be recognised through incorporation including at both the first and second annual Cabinet Meeting with Children and Young People.

Our UNCRC Incorporation Advisory Group

We worked with Together (Scottish Alliance for Children’s Rights) to create a short-term UNCRC Incorporation Advisory Group. This explored what a Bill to incorporate the UNCRC into Scots law would look like.

The Advisory Group was independent of the Scottish Government. It was made up of of a range of world-leading academics and legal experts on children’s rights and incorporation.

These experts drew from their wide experience of incorporation across the world to set out a model of incorporation for Scotland that would meet the standards put forward by the UN Committee on the Rights of the Child.

A Children’s Rights (Scotland) Bill

The Advisory Group created a proposed Children’s Rights (Scotland) Bill to show how the UNCRC could be incorporated into Scots law.

On Universal Children’s Day, 20 November 2018, the Advisory Group presented a Children’s Rights (Scotland) Bill 2019 to the Deputy First Minister and Minister for Children and Young People.

The Children’s Rights (Scotland) Bill has been specifically drafted to incorporate the UNCRC into Scots law. It’s written in a way that:

  • ensures proactive culture of children’s rights across local and national government; and
  • provides redress to children if their rights are breached.