Created 30 years ago in 1989, the UN Convention on the Rights of the Rights of the Child (UNCRC) is the most rapidly and widely ratified international human rights treaty in history. It was the first legally binding international instrument to take in children’s full range of civil, cultural, economic, political and social rights. The UNCRC starts with the premise that children should grow up in an environment of happiness, love and understanding.
Putting the UNCRC into Scots law – a process known as incorporation – is the most important thing Scotland can do for children and young people’s human rights— and our Government has committed to doing just that.
It’s consulting on UNCRC incorporation now , after the First Minister committed to the process earlier in the year.
Incorporation of the UNCRC is something our office has fought for over a long time, but it must happen in the right way.
Our response to the Government stressed that incorporation should be full and direct, and that it needs to happen urgently.
This blog explains why these three things all matter.
But what does incorporation mean in practice?
Incorporation of an international law means it gets written into a country’s law at a national level— a level known as domestic law.
When international law is incorporated into Scots law, it has more power to bring about change.
Often, this happens through cultural change, but this is underpinned by the fact the law would have legal force in Scottish courts.
That means that if the Scottish Government doesn’t meet its international human rights obligations to a child or young person, they can be taken to court in Scotland.
Full incorporation: Children need all of the UNCRC
Full incorporation means that the whole UNCRC should be in Scots law.
The UNCRC is not an aspirational document. It represents the minimum standard of rights a State should ensure for children and young people.
It’s a minimum standard that’s been carefully and extensively considered over the last 30 years. States, judicial bodies and the United Nations have all contributed to our understanding of what the Articles of the UNCRC mean.
That’s why we need to make sure that the wording of the Convention isn’t changed when it’s written into Scots law.
And it’s important that the whole Convention ends up in Scots law, too, because the rights contained within it stand together. They’re indivisible, interdependent and interrelated, so each one has effect on another.
It’s not a case of picking and choosing individual Articles, or individual rights, because the full meaning of any particular right in the Convention can only be understood through the document as a whole.
Direct incorporation: The UNCRC shouldn’t be rewritten
Direct incorporation means that the legal text of the UNCRC isn’t changed when it’s written into Scots law.
The UNCRC can be incorporated into Scots law as it is. There’s no need for it to be rewritten— and as we’ve said, there are good reasons why it shouldn’t be.
That’s the view of an independent Advisory Group on incorporation that contains world-leading legal experts on children’s rights.
The Group – which we helped set up with Together (Scottish Alliance for Children’s Rights)– has produced a Bill to directly incorporate the Convention in this way.
It draws on international evidence and expertise in Scots law to create a form of full and direct incorporation that would work within the context of devolution.
Urgency: Incorporation needs to happen now
The First Minister has committed to UNCRC incorporation within this parliamentary session, but that means there’s not much time to get it into law.
The current session of the Scottish Parliament ends in May 2021, which is now less than two years away.
So it’s urgent that the process of incorporation gets underway, and we need a clear timetable from the Scottish Government around how it’s going to happen.
Specifically, there needs to be enough time for the Scottish Parliament to examine legislation around incorporation closely to make sure that it is robust.
To make sure that time is there, a Bill should be introduced by 20 November 2019– the 30th Anniversary of the UNCRC.
Children’s human rights must be protected now; this cannot and should not wait any longer.