Elaine E Sutherland: How to Increase the impact of the UNCRC Act
Vaunted legislation incorporating UNCRC into Scots law falls short of expectations, writes Professor Elaine E Sutherland.
The United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024 is something of a disappointment in the light of the ambitious plans that preceded it. However, its impact could be increased immeasurably by passing a new child law statute, codifying all the existing child law legislation.
When the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill received the royal assent on 16 January 2024, it was met with one cheer, rather than the traditional three, since it is a pale shadow of what might have been.
The 2024 Act has something of a tortured history. In 2009, Baroness Walmsley introduced a bill in the House of Lords that would have incorporated the UN Convention on the Rights of the Child (CRC) into the law throughout the UK, using the model of the Human Rights Act 1998, but it fell when the 2010 General Election was called. Had that bill passed, the problems that followed in Scotland would have been avoided. Were a similar bill to be introduced afresh at Westminster, there would be benefits for children in Scotland. However, given the current human rights climate there, the chance of such UK-wide legislation is somewhere close to zero.
In the absence of UK legislation, the Scottish government decided that incorporation in Scotland was a desirable goal and it may well have been attracted by the idea of leading the way in the UK (Delivering for Today, Investing for Tomorrow: The government Programme for Scotland 2018-19 (2018), p.12). It was always aware that there were limits on what it could do since some matters, like immigration and regulation of the armed forces, are reserved to Westminster and, thus, outwith the legislative competence of the Scottish parliament.
The original version of the UNCRC (Incorporation) (Scotland) Bill was introduced in the Scottish Parliament in 2020 and passed unanimously on 16 March 2021. Amongst other things, it would have allowed for all legislation on devolved matters to be tested against the “UNCRC requirements”.
It is familiar territory that the attorney general and the advocate general for Scotland challenged the bill on the basis that the Scottish Parliament had exceeded its legislative competence (Scotland Act 1998, s.33). The Supreme Court agreed that certain of the Bill’s provisions were, indeed, outwith legislative competence because, contrary to s.29(2)(c) of the 1998 Act, they could limit the power of the UK Parliament to make laws for Scotland, something guaranteed by s.28(7) (Reference by the Attorney General and the Advocate General for Scotland – United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill  UKSC 42, at ). Thus, despite being passed by the Scottish Parliament, the bill could go no further as it stood.
All was not lost, however, and the Scottish Parliament took the opportunity to reconsider the bill in the attempt to bring it within legislative competence (1998 Act, s.36(4)(a)). These efforts resulted in an amended version of the Bill which was duly passed by the Scottish parliament on 7 December 2023, receiving the Royal Assent on 16 January 2024.
In drafting the new version of the statute, the Scottish government was understandably anxious to avoid another s.33 challenge and it may be that it over-corrected. The main limitation in the revised bill and, now, the 2024 Act is that it applies only to statutes passed by the Scottish Parliament. It does not apply to Westminster statutes even if they address devolved matters in a Scotland-only context. So, for example, the Children (Scotland) Act 1995 is outwith its reach. As a result, the various provisions of the 2024 Act – notably, the public authority duty to act in a way that is compatible with the UNCRC requirements (s.6) and the need to interpret a statute in a manner that is compatible with these requirements (s.24) – do not apply to such excluded statutes.
My goal here is not to feed the grievance culture in Scotland so loved by some of our politicians. Rather, it is to offer a (relatively) simple solution to the problem; a solution that lies in codification. It would be quite possible to gather together all the existing child law statutes, including those passed at Westminster, and recast them in a new statute to be passed by the Scottish parliament. The 2024 Act would then apply to the new statute.
When a “simple” solution is proposed, the first reaction of any sensible person is to ask, “What’s the catch?” Codification has many benefits not the least of which is streamlining the law, thereby making it more accessible. It also provides the opportunity to iron out inconsistencies and to simplify the language, making the law more user-friendly for the many non-lawyers who want to find out what it provides (E.M. Clive, “Thoughts from a Scottish perspective on the bicentenary of the French Civil Code” (2004) 8 Edin. L.R. 415; E.E. Sutherland, “Bringing order to family law” (2013) 58(9) J.L.S.S.).
The idea of codifying child and family law is not new and was advanced by the Scottish Law Commission in its 1992 Report on Family Law. Why that idea has not been taken any further is a matter for speculation. It may be that there is a lack of political will to tidy up the law because it lacks the vote-winning appeal of doing something about matters like education or housing where people feel the effects more immediately.
A more likely explanation, however, is the fact that producing a codified statute would require resources. First, the new statute would have to be drafted, probably either by the Scottish Law Commission or by a specially-appointed committee. Then there would be a need for extensive consultation. Finally, time would have to be found in the Scottish parliament to shepherd the new bill through the legislative process.
What is proposed here is much narrower than a child and family code since only child law statutes would be codified at this stage. Granted, that would still require resources but, if the Scottish government is serious about ensuring that the CRC applies as widely as possible in Scotland, codification of child law is the way for it to achieve that goal.
Elaine E Sutherland is professor emerita at the University of Stirling and distinguished professor of law emerita at Lewis & Clark Law School, Portland, Oregon.