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On the Cusp of Maximalist Incorporation of Children's Rights

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On the Cusp of Maximalist Incorporation of Children's Rights On The Cusp Of Maximalist Incorporation Of Children’s Rights In Scotland Dr Kasey McCall-Smith Edinburgh Centre for International and Global Law Working Paper Series ON THE CUSP OF MAXIMALIST INCORPORATION OF CHILDREN’S RIGHTS IN SCOTLAND Forthcoming in U Kilkelly, L Lundy and B Byrne (eds), Incorporating the United Nations Convention on the Rights of the Child into National Law (Intersentia 2021) Kasey McCall-Smith * ABSTRACT Children’s rights have long featured in Scottish politics and have been a particular focus of the Scottish National Party’s platform since it became the majority governing party in 2011. In April 2019 the leader of Scottish Government pledged that the government would incorporate the CRC into national law during this parliamentary term, which ends in March 2021. This chapter explores the way in which this pledge and previous Scottish implementation efforts have supported a commitment to children’s rights. It begins with a brief overview of the legal settlement between the Scottish and UK governments and the growing attention on children’s rights post devolution. This is followed by an overview of key legal and non-legal measures implementing various aspects of the CRC in Scotland, including points of tension. How these measures have impacted judicial protection of children’s rights will then reveal the gaps that persist in Scots law. The chapter then moves on to consider the potential for further entrench- ment of the CRC in Scotland through direct, maximalist incorporation as reflected in the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill that was intro- duced in Scottish Parliament on 1 September 2020. 1. INTRODUCTION As a devolved nation within the United Kingdom (UK), Scotland has taken an increasingly leading role in entrenching children’s rights. Though the UK ratified the UN Convention on the Rights of the Child (CRC) in 1991, and subsequently ratified its first two Optional Proto- cols, 1 it has done little to implement these rights into its national law and policy frameworks. * Senior Lecturer in Public International Law, University of Edinburgh Law School. Contact: kasey.mccall- [email protected]. With many thanks to Sarah McDermott, Lauren Mizen and Martina Trusgnach for research as- sistance and the editors for comments on a previous version. All errors remain my own. 1 UN Convention on the Rights of the Child, adopted 20 November 1989, entered into force 2.9.1990, 1577 UNTS 3 (CRC); Optional Protocol on the Involvement of Children in Armed Conflict, adopted on entered into force The strongest children’s rights protections in the UK have been entrenched predominantly through efforts in the devolved nations, including Scotland. As a result of successive updates to its devolution settlement, Scotland is able to legislate and develop children’s rights through laws and policies distinct from the UK, the actual State Party to Convention. Children’s rights have long featured in Scottish politics and have been a particular focus of the Scottish National Party’s (SNP) platform since it became the majority governing party in 2011. Of the almost 5.5 million people in Scotland, just over 1 million meet the CRC definition of a child as individuals aged 0 to 17.2 In April 2019 the leader of Scottish Government, First Minister Nicola Sturgeon, pledged that the government would incorporate the CRC into na- tional law during this parliamentary term, which ends in March 2021. This chapter explores the way in which this pledge and previous Scottish implementation efforts have supported a commitment to children’s rights. It begins with a brief overview of the legal settlement between the Scottish and UK governments and the growing attention on children’s rights post devolu- tion. This is followed by an overview of key legal and non-legal measures implementing vari- ous aspects of the CRC in Scotland, including points of tension. How these measures have impacted judicial protection of children’s rights will then reveal the gaps that persist in Scots law. The chapter then moves on to consider the potential for further entrenchment of the CRC in Scotland through direct, maximalist incorporation as reflected in the United Nations Con- vention on the Rights of the Child (Incorporation) (Scotland) Bill that was introduced in Scot- tish Parliament on 1 September 2020 (CRC Incorporation Bill). 2. THE SCOTTISH OPPORTUNITY TO IMPLEMENT THE CRC The UK is a dualist state without a written constitution; therefore international law must be incorporated before it becomes binding on state actors.3 Similar to Wales, discussed by Hoff- man in this volume, as a devolved nation within the UK Scotland is bound to implement the CRC in line with the UK’s ratification of the original treaty and the optional protocols.4 The UN Committee on the Rights of the Child (the Committee) has repeatedly called upon the UK 12.2. 2002, 2173 UNTS 222 (CRC-OP1); Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography, adopted on 25.5.2000, entered into force 18 January 2002, 2171 UNTS 227 (CRC-OP2). The UK ratified the CRC on 16 December 1991, the CRC-OP1 on 24.4.2003, and the CRC-OP2 on 20.2.2009. 2 The precise estimate is 1,029,162. National Records of Scotland, Mid-year Population Estimates Scotland, Mid-2019, Data and Charts, 30.4.2020, <https://www.nrscotland.gov.uk/statistics-and-data/statistics/statistics- by-theme/population/population-estimates/mid-year-population-estimates/mid-2019>. 3 Constitutional Reform and Governance Act 2010. 4 See S. HOFFMAN, discussion of Wales, chapter 8, this volume. 2 to bring its law and policy into conformity with the CRC in line with Article 4.5 Moving chil- dren from passive objects of the law to active subjects of the law was a long struggle for chil- dren’s rights activists, thus there was a period of almost six decades between the acknowledge- ment of the child in international law to the adoption of the CRC and its reformulation of children as active rights-holders. 6 This struggle is reflected in the UK approach to children’s rights. To date, the single comprehensive attempt to reconcile UK law with the CRC was made in 2009 when the Children’s Rights Bill was introduced in the House of Lords in order to ‘give further effect to rights and freedoms guaranteed under the [CRC]’ by directly incorporating the CRC into UK law.7 The bill never progressed past its first reading and, even if it had passed, would have had little relevance in Scotland for the reasons set out below. However, the excite- ment prompted by the possibility of incorporating the CRC in the UK set the stage for the devolved nations to forge their own paths in relation to protecting children’s rights. A wide range of human rights related policy areas have been devolved to Scotland through the passage of the Scotland Acts of 1998, 2012 and 2016. As a result of these successive acts, the Scottish Parliament may legislate in relation to issues such as education and training, health and social services, housing, law and order, some aspects of equality, social security and taxa- tion, as well as range of additional areas.8 Because the CRC includes civil, political, economic, social and cultural rights, the ability to respond to a broad range of law and policy areas under- pins the possibility of further entrenching CRC rights. The Scotland Act 1998 sets out the legal relationship between the UK government and the devolved Scottish government and clarifies in which areas Scotland is able to develop law and policy. As with many federated systems, different areas of law are reserved to the UK govern- ment, such as immigration and ratification of treaties.9 Through successive revisions of the devolution arrangement, many areas touching upon children’s rights are devolved to Scotland 5 CRC, art. 4 demands that ‘States Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention.’. UN Committee on the Rights of the Child (CRC COMMITTEE), Concluding observations on the fifth periodic report of the United Kingdom of Great Britain and Northern Ireland, UN Doc. CRC/C/GBR/CO/5 (12.7.2016) (Concluding Observations 2016) para. 7; CRC COMMITTEE, Concluding observations on the fourth periodic report of the United Kingdom and Northern Ireland, UN Doc. CRC/C/GBR/CO/4 (2008) paras. 10–11. 6 J. TOBIN, The UN Convention on the Rights of the Child: A Commentary, 1st ed., OUP, Oxford 2019, p. 4. 7 See https://publications.parliament.uk/pa/ld200910/ldbills/008/10008.i-ii.html accessed 4.5.2020. 8 Scotland already had separate laws in relation to many of these areas, education, for example. 9 See the case studies on Australia, Belgium, German and Spain presented in L. LUNDY, U. KILKELLY, B. BYRNE and J. KANG, The UN Convention on the Rights of the Child: A Study of Legal Implementation in 12 Countries, UNICEF. 3 – such as education, the environment, health, and housing – whereas social security, for exam- ple, remains a partially reserved matter subject to adjustment by both the UK and Scottish governments. The Scotland Act expressly permits Scotland to implement international obliga- tions. 10 It also outlines that any Act of Scottish Parliament will be unlawful if it runs counter to the European Convention on Human Rights (ECHR), therefore this adds an additional layer of human rights protection that applies to all individuals in Scotland. However, the ECHR does not directly address the specific needs of children, nor does the Human Rights Act 1998 that incorporated it into UK law.11 Although Scotland had already set a course for strengthening children’s rights prior to devolution,12 individually and collectively the additional powers de- volved to Scotland over the past two decades have the potential to make a real difference in the fulfilment of the range of children’s rights articulated in the CRC.
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