What legal force does the UNCRC have?
The UK Government ratified the United Nations Convention on the Rights of the Child (UNCRC) in 1991. However, courts of law – both in Scotland and the rest of the UK – don’t legally have to follow it. How can this be?
The answer is that both Scotland and the UK make a distinction between international law and domestic law. For an international law to apply in places where domestic law is in effect – such as our courts – it itself has to enter domestic law.
The process by which this would happen is known as incorporation. For example, the Human Rights Act incorporates the European Convention on Human Rights into UK law. While this Act is in place, the UK’s laws must abide by the Convention before they can be passed.
Where we are now
In UK domestic courts, the UNCRC is used as an interpretive aid. Our goal is to see things to go much further in Scotland, with the incorporation of the UNCRC into law.
We’ve made a small step towards this with the Children and Young People (Scotland) Act. One of the things this Act does is make Scottish Government Ministers to “keep under consideration whether there are any steps which they could take which would or might secure better or further effect in Scotland of the UNCRC requirements”.
This means that the Scottish Government should always consider whether what they’re doing will help promote the rights of children and young people in Scotland. However, even if Ministers recognise a policy could be changed to better support these rights, they don't have to make any changes to it unless they think it's appropriate to do so.
To make sure Ministers follow the new duty, they must now submit a report to the Scottish Parliament every three years. This report should talk about what changes and improvements they've made to realising the rights of children and young people over that period, while also setting out what the Ministers plan to do in the next three years.