A sign of hope: Scotland's historic move to protect children's rights
Friday, January 19, 2024
It’s a sign of hope that the first Act of the Scottish Parliament in 2024 is a law which will radically improve the way children’s rights are respected, protected, and fulfilled.
Unanimously passed by the Scottish Parliament, the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024 will be in force by the summer.
Scotland follows in the footsteps of an increasing number of countries whose experience show that incorporation is the best way to ensure systematic and effective legal implementation of children’s rights at a national level.
This change has been a long time coming. It’s testament to the incredible commitment and determination of children and young people and adult human rights defenders who slowly shifted the minds of Scottish Government and all of the Members of the Scottish Parliament. They should be hugely proud.
By 16 July 2024 it will be unlawful for public authorities to act incompatibly with the United Nations Convention on the Rights of the Child 1989 (UNCRC). There will be obligations on the Scottish Government in relation to planning, monitoring and reporting, and assessing the impact of decisions affecting children’s rights. The goal is culture change, but at the heart of the law is accountability. Many rights, especially economic, social, and cultural ones will be justiciable for the first time. Such accountability focuses minds and budgets.
The UNCRC which forms the heart of the new law is founded on the concept that all children should grow up in a family environment of happiness, love and understanding. It makes clear that children are rights holders, not just objects of care and charity. It contains a broad array of rights designed to ensure children are treated with dignity and fairness; that they are protected; that they develop to their full potential; and can participate fully in their communities.
All children will benefit, but children whose rights are most at risk will benefit most with special attention to disabled children, care experienced children and those at risk. It requires all available resources to be used to address poverty and provide services like education, health, and family support.
Incorporation changes the legal landscape for children’s rights and provides clearer routes to access to justice and effective remedy for children, not just through potential litigation, but also through a focus on child friendly complaints. As the UN Committee on the Rights of the Child has made clear; “for rights to have meaning effective remedies must be available to redress violations”.
The law has paved the way for further human rights treaties to be incorporated. The Scottish Government has committed to bring forward a Scottish Human Rights Bill this year to incorporate four other international human rights treaties and rights for older people and the environment.
One limitation of the Scottish law is its scope. The Scottish Parliament can only legislate on things that are devolved to it, and following a judgment by the UK Supreme Court, the law was narrowed to exclude Acts of the UK Parliament, even where they cover things that are devolved to Scotland. Some of these issues will be brought into scope through future Scottish legislation, but for reserved issues UK legislation is needed.
The UN Committee on the Rights of the Child has consistently called for the UK to incorporate the UNCRC. Civil society organisations have campaigned tirelessness, and in 2009 Baroness Walmsley brought a bill to the UK Parliament but was unsuccessful.
Last year the UK Government argued to the UN Committee that we didn’t need the accountability that incorporation of the UNCRC would provide as they were doing such a good job on children’s rights already. The Committee responded with nearly 200 recommendations which suggest otherwise.
There is a lot of work ahead. The new law is just the start, implementation will take time and effort. But, in Scotland at least, 2024 starts with a law which puts children’s rights at the heart of decision making and provides a new level of accountability for those in power.
Bruce Adamson is professor in practice at the University of Glasgow School of Law. A human rights lawyer with over 20 years of experience, Bruce he has worked for the UN, the Council of Europe and various other international bodies. He was the children and young people’s commissioner Scotland from 2017-2023, playing a leading role in the incorporation of the UNCRC, as well as the laws to raise the age of criminal responsibility and to provide comprehensive protection from physical punishment. Bruce is a former chair of the European Network of Ombudspersons for Children and of the Scottish Child Law Centre. He is the current vice-chair of the Child Friendly Governance Project.