Introduction
On 16 July, the UNCRC (Incorporation) (Scotland) Act 2024 came into force, making Scotland the first part of the UK to write the United Nations Convention on the Rights of the Child (UNCRC) into law. Public authorities will have to fully embed children’s rights into their policies and practice and children can legally challenge when their rights are breached. The legislation also gives new legal powers to the Children and Young People’s Commissioner Scotland. Nick Hobbs, Head of Advice and Investigations, explains more in a Q&A…
Legal powers
What does the UNCRC (Incorporation) (Scotland) Act 2024 mean for the Children’s Commissioner’s office in terms of legal powers?
It’s the most significant change to the office’s powers since it was created in 2003. It gives us the power to intervene in legal proceedings or to bring proceedings in our own name on a range of different children’s rights issues.
It doesn’t mean that we’re going to try to take every issue to court. There may well be quicker and more effective means of resolving an issue and we hope that public authorities will be open to constructive discussions.
But we are very excited about the Act – it’s a very important new set of tools that we can apply to rights issues.
What’s new?
How is that different from what has happened previously?
Before the Act came into force, we did not have any legal powers to start court cases but we could ask the court for permission to make formal submissions (known as an ‘intervention’) on an existing case. Now, courts are going to consider UNCRC issues directly and when they do, we don’t need permission to intervene, we have the power to intervene. From now on, we also have the power to initiate cases ourselves instead of having to wait for others to do so. We will also get notified about every UNCRC Act case that’s raised in Scotland, whereas previously knowing what cases were happening was sometimes challenging.
How we make decisions
How is the office going to decide which cases it can and can’t work on?
One of the great unknowns about this is what the volume of cases is going to be and what issues are going to be raised. To some extent, we have to wait and see. We’ve been planning on the basis that the volume is going to be significant because that’s the best way to approach it. We obviously can’t be involved in every case – we don’t have the staff or the money to do that – so we must have a decision-making and prioritisation process. That allows us to make sure that the cases the Commissioner chooses to become involved in, whether through an intervention or in the Commissioner’s name, are the ones that match with the priorities of the office, and that offer the best opportunity to deliver systemic or strategic change on children’s rights issues.
How have we prepared?
How has the office been preparing for the new powers to come into force?
We, particularly the Advice and Investigations team, have been planning and working on this for a long time! In 2022, we published our Strategic Litigation Toolkit which sets out how we involve children and young people in strategic litigation, and shows how we choose the legal cases to become involved in. This is going to be really important as it will help us work out which cases we want to prioritise. As more information about the detail of the Act and the court rules has emerged, we’ve also developed an initial sift process, so we can make quick, transparent and robust decisions about cases as they come in and decide which ones we want to take forward.
Understanding use of powers
How will people be able to understand how the office is using this power?
We will publish the documentation around decision-making so people will see clearly how and why we are making decisions. As I’ve said, we can’t take every case so we have to focus on those cases that will have the most impact. We’ll review those processes regularly and change them if we need to. People will also legitimately look at the judgments of the courts to see how we’ve exercised our powers – so that’s an important aspect of it as well.
We are not a legal service
Do the new powers mean the office will be providing a legal service to the public?
No, it doesn’t. We aren’t able to represent or provide advice to individual children or families. Most of the time, when a child comes to us and thinks their rights have not been respected, we will signpost them to an independent solicitor if they don’t already have one. However, if we think that their case raises a particular systemic issue that we need to address, then we might say to a child and their solicitor “we think there is a big issue here that needs tackled, can we use your experiences and views, as evidence to support our case?”
Future work
Do you know what cases the office may get involved in?
It’s very difficult to predict. I’m sure that all over Scotland, solicitors will be asking themselves “how can I use this new Act for the benefit of my clients?”. I’m sure we will get some important and interesting cases. We are very aware of our responsibilities and obligations as we are looking at what rights issues we can tackle for children using the new legal powers. Ultimately, our new powers are a tool which will lead to real, positive change. New standards and laws will be set in rights which will be life-changing for children.