Scottish Government’s UNCRC Incorporation Consultation: Options

Dr Kasey McCall-Smith has blogged for us about the options for incorporation and her thoughts on the preferred option.

Arrow pointing right chipped into a stone surface.

As party to the UNCRC since 1991 the UK has a legal obligation to ensure that all domestic legislation is compatible with the international agreement, yet the UK has done little to collectively make children’s rights a priority through legislation. Thus, devolved UK nations, including Scotland, have individually made political and legal commitments to further entrench children’s rights in line with the UNCRC, including the First Minister’s pledge to incorporate the UNCRC into Scots law. This pledge set in motion variable activities to determine what this means and how best this is to be achieved in Scotland. To that end, in May 2019 Scottish Government opened a consultation on the best model for incorporation of the UNCRC. A key difficulty is that very few law and policymakers, not to mention the general public, have ever had the opportunity to go through the technicalities of incorporating a human rights treaty into national law.

A simple explanation of incorporation of a human rights treaty is that it is a narrow conception of human rights implementation, which ensures direct application and enforceability of the rights in national law. ‘Direct application’ means that the UNCRC provisions are capable of being invoked in national courts and must be applied by government institutions. ‘Enforceability’ generally refers to the availability of institutions, such as courts or other administrative agencies, and procedures to provide a remedy for the breach of a right. ‘Direct incorporation’ means that the international treaty will form part of national law through a process of transformation or transposition and therefore be binding on public agencies and enforceable in court.

The Consultation Paper presents two primary models for UNCRC incorporation, including direct incorporation or a ‘redrafted’ model – what the Government has termed ‘transposition’ (the all-encompassing Statutory human rights framework will not be discussed).  While the consultation paper correctly notes that there is no single method of implementation, implementation and incorporation are two different legal concepts. Direct incorporation is the first step toward effective implementation while implementation represents the collective legal, policy and social initiatives that support the realisation of a right.

As has been consistently advocated by the Children and Young Peoples Commissioner for Scotland and the expert advisory group that has been working with the CYCPS, full and direct incorporation is the preferred model for realising children’s rights in Scotland. The draft Children’s Rights (Scotland) Bill was developed by a committee of experts on both children’s rights, Scots law and international law. The advisory group drew upon international children’s rights practice to craft the draft that is included in the Consultation Paper. It offers a framework of proactive and reactive components while incorporating the full text of the UNCRC into Scots law, defining the duty-bearers, the rights recipients and clarifying who may raise claims in the reactive sense if the government fails in its duties to children. It also acknowledges that devolved competence may limit the ability of the Scottish Government organs in certain circumstances and underscores that further detailed legislation will be necessary to give full effect to some of the rights.

The Consultation Paper demonstrates the confusion around incorporation as it uses the word ‘transposition’ incorrectly in introducing a second incorporation option. It is word that long has been used in the UK and internationally to identify legislative practice of taking a piece of international law – in this case the UNCRC – and embedding it directly into UK law much like the Human Rights Act model. ‘Transposition’ is not normally used to refer to the process of redefining the terminology of human rights conventions. Proposals to redraft the language of the UNCRC for the ‘Scottish context’ would result in unanchored, untested legalese as the UK courts have been referencing the legal opinions of the Committee on the Rights of the Child (which oversees the UNCRC) for a decade. Alternatively, the direct incorporation method has many advantages as it ensures the rights remain comparable to those in the UNCRC rather than a redrafted version, such as the ‘transposition’ option suggested in the consultation.

The UNCRC framework is a trusted reference point with an established, identifiable body of interpretive legal concepts and terminology not only in the UK but across the world. It gives extensive consideration to the basic needs of children across mainstream rights platforms as well as those children’s rights that are marginalised for any number of reasons. To be clear, the UNCRC is a floor, not a ceiling, and the language used in the Convention confirms that governments must do more than pay lip-service to the UNCRC. Direct incorporation is the key to fully delivering a legal landscape that promotes, protects and fulfils children’s rights and an environment where ALL children thrive.