Response 278588743

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Theme 1: Legal mechanisms for incorporating the UNCRC into domestic law

1. Are there particular elements of the framework based on the HRA as described here, that should be included in the model for incorporation of the UNCRC in domestic law?

Please select one item
Ticked Yes
No
Don't know
Please explain your views.
Yes, there are important aspects of the framework based on the HRA that should be included in the model for incorporating UNCRC into domestic law. One of the major critiques of the international rights-based framework is the lack of enforcement mechanisms (Hollingsworth, 2017; Kilkelly, 2008b; Goldson and Kilkelly, 2013), so we would argue that it is particularly important that, as in the HRA, rights can be invoked before the courts as a means of upholding children’s rights.

2. Are there any other aspects that should be included in the framework?

Please select one item
Ticked Yes
No
Don't know
Please explain your views.
At CYCJ, we agree with Together Scotland and CYPCS that in addition to the reactive approach once a breach of rights has occurred, there should also be a proactive duty to have “due regard” when public authorities are exercising their responsibilities and taking decisions. This is an important component of supporting a culture change around upholding children’s rights as opposed to ad hoc technical compliance based on piecemeal attempts at meeting legal requirements.

3. Do you agree that the framework for incorporation should include a “duty to comply” with the UNCRC rights?

Please select one item
Ticked Yes
No
Don't know
Please explain why.
Yes, duty to comply as well as “due regard” places responsibilities upon all public authorities and ensures protection for all children’s rights for all children. Whilst the Scottish Government has introduced policy and legislation to focus the importance and implementation of children’s rights in Scotland through GIRFEC and the CYP (S) A 2014, there is more to do to comprehensively embed children’s rights as intended. As stated the combination of duty to comply, due regard and redress for failures to do so provides a strong foundation from which children’s rights will be truly embedded across all aspects of Scottish life.

4. What status, if any, do you think General Comments by the UN Committee on the Rights of the Child and Observations of the Committee on reports made by States party to the UNCRC should be given in our domestic law

What status, if any, do you think General Comments by the UN Committee on the Rights of the Child should be given in our domestic law?
Both the General Comments and observation reports provide a vital role in assisting and improving the implementation of UNCRC. General Comments focus on specific purposes such as clarification of legislative provisions and provision reference points and guidance for national courts, helps in providing context for the meaning and application of rights. It has also been highlighted that the “highly authoritative character of the General Comments can also be justified by the fact that they are the result of a comprehensive participatory process including interest groups of different regional, cultural, and religious context as well as non-governmental organizations.” (German Institute for Human Rights). To fail to reflect the General Comments within Scottish Children’s Rights legislation would fail to recognise their importance and relevance. These must be stipulated within any legislation; perhaps that due regard (in line with the proposed draft Bill by Together Scotland and CYPCS) would be appropriate.
With regard to observations then these should surely have the same consideration as general comments. If the observation reports identify gaps within Scotland’s implementation and upholding of UNCRC then these must be addressed.

5. To what extent to you think other possible aids would provide assistance to the courts in interpreting the UNCRC in domestic law?

To what extent to you think other possible aids would provide assistance to the courts in interpreting the UNCRC in domestic law?
Case law and looking to other countries who have fully incorporated UNCRC will provide a wealth of information to aid and assist in interpreting UNCRC in domestic law. The context is different however, and so there will be an ongoing need to support learning and the development of knowledge and skills. As quoted by Together Scotland, James Wolffe QC, the now Lord Advocate, has said “Domestic courts have, in recent years, been more used to dealing with a range of international materials than they were in the past – and, indeed, may have to do so when they apply EU law and interpret Convention rights”.

6. Do you agree that it is best to push forward now with incorporation of the UNCRC before the development of a Statutory Human Rights Framework for Scotland?

Please select one item
Ticked Yes
No
Don't know
Please explain your views.
Yes. We do not see any reason to delay the full incorporation of UNCRC whilst a Statutory Human Rights framework is being developed. There is an immediate need to uphold the rights of children and pressing forward with full incorporation of UNCRC will help us work towards that goal.

7. We would welcome your views on the model presented by the advisory group convened by the Commissioner for Children and Young People in Scotland and Together (the Scottish Alliance for Children’s Rights).

We would welcome your views on the model presented by the advisory group convened by the Children and Young People’s Commissioner in Scotland and Together (the Scottish Alliance for Children’s Rights).
CYCJ agrees with the model proposed as it fully incorporates and respects the integrity of the UNCRC. It clearly utilises learning from international practice to set out a model for Scotland that is proactive in preventing breaches of children’s rights and redress for occasions where this should happen. It develops the learning from Wales into a stronger position, as is referred to as Human Rights. The model strongly connects to the existing UNCRC General Comments, Observations and Optional Protocols and ensures future policy and legislation must be compatible. There is a clear recognition and understanding of the interconnectedness of all of the rights and that they cannot be broken up, as to do so would create inequality and undermine the aspirations of the Scottish Government.

8. How should the issue of whether particular UNCRC rights are self-executing be dealt with?

How should the issue of whether particular UNCRC rights are self-executing be dealt with?
If understood correctly then the question of self-executing would not be valid if the UNCRC is directly incorporated into domestic law.

9. How could clarity be provided to rights holders and duty bearers under a direct incorporation approach, given the interaction with the Scotland Act 1998?

How could clarity be provided to rights holders and duty bearers under a direct incorporation approach, given the interaction with the Scotland Act 1998?
A rights-based approach requires building the capacity of duty-bearers to fulfil their obligations and of rights-holders to claim their rights. UNCRC incorporation in Scotland could only be applied to those areas that fall within the responsibility of the Scottish Parliament, under the Scotland Act 1998. Therefore, there will be a need for guidance, training, awareness raising and support for children to advise them and assist them in exercising their rights. There will be a particular need to support the most marginalised and excluded children to understand and exercise their rights. Howard League Scotland would like to draw attention to the fact that this includes children who have a parent in the criminal justice system and who “are rarely given opportunities to be listened to or have their rights respected in adult criminal court proceedings” (Prison Reform Trust), as also highlighted by the Children and Young People’s Commissioner for Scotland.

10. Do you think we are right to reject incorporating the UNCRC solely by making specific changes to domestic legislation?

Please select one item
Ticked Yes
No
Don't know
Please explain why.
Yes. We welcome the Scottish Government’s rejection here. Full incorporation of the UNCRC as designed should be the position within Scotland. We would be concerned about making piecemeal changes to domestic legislation rather than approaching the incorporation of UNCRC through an overarching framework. A piecemeal approach would not demonstrate a clear and comprehensive commitment to children’s rights, potentially resulting in gaps in the rights children can exercise, which would be likely to impact most heavily on those children for whom rights are difficult to respect.

11. If the transposition model was followed here, how would we best enable people to participate in the time available?

If the transposition model was followed here, how would we best enable people to participate in the time available?
We do not believe that a transposing model would be effective. To date this is the model used in Scotland and we would question its effectiveness in reflecting UNCRC within legislation.

12. What is your preferred model for incorporating the UNCRC into domestic law?

Please explain why.
We support full and direct incorporation, and to achieve this our preferred model would be the Children’s Rights (Scotland) Bill, developed by an Expert Advisory Group convened by Together and the Children and Young People Commissioner Scotland. We agree with Together Scotland’s response that this represents a ‘gold standard’ model of UNCRC incorporation that meets the First Minister’s aspiration for children in Scotland.

Theme 2: Embedding Children’s Rights in public services

13. Do you think that a requirement for the Scottish Government to produce a Children’s Rights Scheme, similar to the Welsh example, should be included in this legislation?

Please select one item
Ticked Yes
No
Please explain why.
Yes. Whilst the Welsh example is in relation to due regard, what it clearly outlines are the measures and actions by which the government will be held accountable in ensuring UNCRC is fully considered. Whilst advocating that Scotland should encompass both direct incorporation and due regard, the components of the Welsh example provide clear framework from which Scotland can begin and learn by adopting the following:
• Ensuring appropriate awareness raising and training is in place and actively promoted and taken up, including details as to how this will be undertaken and recognition that some professionals will require more specific and detailed training; includes online, face to face.
• Putting a Children’s Rights Impact Assessment (CRIA) process in place; in addition the process and support for government staff to understand the application of this, when to do so and when not required in the Welsh example seems detailed and helpful. In addition, the publication process ensures transparency.
• Setting out Accountability and Compliance mechanisms, again this significantly contributes to transparency and ministers being able to be held to account. Provides opportunity for reflection on what is progressing positively and where further action may be required in the 5-yearly reports and interim reports. For Scotland, it may be more prudent to consider shorter reporting periods e.g3-year periods stated within the consultation document.
• Providing information and guidance on how Scottish Ministers may be held to account for compliance
• Ensuring that such a scheme is revised when necessary
• Ensuring clear understanding of roles and responsibility in relation to all of these elements
• Complaints processes

14. Do you think there should be a “sunrise clause” within legislation?

Please select one item
Yes
Ticked No
Don't know
Please explain why.
A sunrise clause should not be required, given the timescales from which the UNCRC was ratified and public authorities should have been complying with. Whilst acknowledging within this response that the piecemeal manner in which legislation has attempted to obligate adherence to UNCRC has not been successful, there is no benefit to further delay.

15. If your answer to the question above is yes, how long do you think public bodies should be given to make preparations before the new legislation comes into full effect?

Please explain why.
N/A

16. Do you think additional non-legislative activities, not included in the Scottish Government's Action Plan, are required to further implement children’s rights in Scotland?

Please select one item
Ticked Yes
No
Don't know
Please explain why.
Yes. Legislation is only part of the action required to make UNCRC incorporation meaningful for all children in Scotland. In order to have real impact for children, their families and wider society, everyone has to be included in understanding the importance of children’s rights and their role in upholding them.
Awareness raising across all of Scottish life is necessary so individuals (including children as well as organisations) understand what their role and responsibility is in relation to upholding, implementing and supporting children to access and use their rights. Embedding this within education (curriculum for excellence), using language that is easily accessible for all, adapting and using a range of materials and methods to convey the information, being inclusive and framing rights will support cultural shift and understanding to embed children’s rights. Framing this as everyone’s responsibility and the importance of cross agency collaboration will strengthen the understanding and challenge as to why things are done/delivered in a certain way and where change is required.
Action in support:
• Awareness raising across range of services, organisations as well as wider public and specifically for children and their parents/ carers.
• Training across all services and can be delivered at varying levels in relation to role and responsibilities – must include those within the justice context where children come into conflict with the law
• Advocacy
• Range of modalities in which information is disseminated
• Practice examples that give context and meaning
• Childs rights budgeting

Theme 3: Enabling compatibility and redress

17. Do you agree that any legislation to be introduced in the Parliament should be accompanied by a statement of compatibility with children’s rights?

Please select one item
Ticked Yes
No
Don't know
Please explain your views.
Yes. This ensures that a statement must accompany any new legislation from the individual proposing the Bill, which confirms that it complies with the UNCRC and optional protocols. Within the proposed draft by Together and others, they also stipulate that a CRIA/CRWIA is undertaken. Having both aspects within Scottish legislation strengthens Parliament’s scrutiny of any Bill’s compliance with UNCRC at all stages.

18. Do you agree that the Bill should contain a regime which allows right holders to challenge acts of public authorities on the ground that they are incompatible with the rights provided for in the Bill?

Please select one item
Ticked Yes
No
Don't know
Please explain your views.
Yes. As stated within consultation document, this is the case under HRA and ECHR. Children are most likely to come into contact with public authorities and it is critical that they can challenge these agencies and organisations and know they have the right to do so. Without the prospect of challenge, this may reduce the impetus or full consideration of children’s rights across the broad spectrum of public authorities’ tasks and roles. More than this is the right to remedy or redress where rights are violated. The proposed due regard and duty to act compatibly as proposed in the draft bill noted in Question 7 is crucial.
Whilst such a regime is necessary it is also about how accessible this knowledge and opportunity to challenge is for children or those who can support their challenge. As stated at the beginning of this response children in conflict with the law are often affected by a range of factors and disenfranchised, as well as viewed through a lens of deserving and undeserving. Ensuring that barriers are removed as well as a recognition that the systems themselves may create a sense of powerlessness or hopelessness, which circumvents a challenge being brought, has to be acknowledged. Thus, truly, child friendly processes and procedures must be devised with children, which includes access to independent parties to whom children can raise complaints and they should be supported in doing so.
The optional protocol 3 on Communications Procedure for UNCRC provides a complaints procedure for children whose rights have been breached however, UK has not committed to ratify this nor has the Scottish Government indicated support for the UK’s ratification. Children in Scotland cannot access this route to justice where rights have been violated, yet for those countries where it has been ratified this is a pathway to justice.

19. Do you agree that the approach to awards of financial compensation should broadly follow the approach taken to just satisfaction damages under the HRA?

Please select one item
Ticked Yes
No
Don't know
Please explain your views.
Yes. HRA provides an established framework and precedence for financial compensation and states that when rights have been violated then an individual should be left in the position they would have been had the violation not occurred. In addition, it is clearly stated by the UN Committee that when rights are found to have been breached, “there should be appropriate reparation, including compensation, and, where needed, measures to promote physical and psychological recovery, rehabilitation and reintegration, as required by Article 39”.

20. Do you agree that the UNCRC rights should take precedence over provisions in secondary legislation as is the case under the HRA for ECHR rights? Are there any potential difficulties with this that you can see?

Please select one item
Ticked Yes
No
Don't know
Please explain why.
Yes. As stated by Together Scotland, “This would be in line with what already happens with the ECHR through the Human Rights Act. There is clear evidence at an international level that the most effective models of incorporation are those in which the human rights treaty is given precedence over other legislation (for example, in the case of the UNCRC in Norway and the ECHR through the Human Rights Act in the UK).”

21. Do you agree that the Bill should contain strong provisions requiring an ASP to be interpreted and applied so far as possible in a manner which is compatible with the rights provided for in the Bill?

Please select one item
Ticked Yes
No
Don't know
Please explain your views.
Yes. This is already in place through the HRA 1998 as stated within the consultation documentation. It would seem appropriate this is replicated within the model of UNCRC incorporation for Scotland.

22. Should the Bill contain a regime which would enable rulings to be obtained from the courts on the question of whether a provision in an ASP is incompatible with the rights secured in the Bill?

Please select one item
Ticked Yes
No
Please explain your views.
Yes. This would ensure that all legislation in Scotland is rights based and compatible with the Act.

23. Do you consider any special test for standing to bring a case under the Bill should be required?

Please select one item
Yes
Ticked No
Don't know
Please explain your views.
No. CYCJ agrees that there should be a broader definition of standing than HRA and that someone with sufficient interest should be able to take a case on behalf of a child. This reflects the consideration of all under 18s having varying needs and abilities, such that some children would be able, have opportunity and capacity to raise a case themselves regarding a breach of their rights, while others may face discrimination and disempowerment that prevents them from doing so. Thus, by sufficient interest being the standard this provides for others to act on their behalf as well as the Children and Young People Commissioner Scotland, the Scottish Human Rights Commission and the Equalities and Human Rights Commission.

About you

What is your name?

Name
Donna McEwan

Are you responding as an individual or an organisation?

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(Required)
Individual
Ticked Organisation

What is your organisation?

Organisation
Centre for Youth & Criminal Justice in conjunction with Howard League