Thu 11 Jul 2024

What the UNCRC (Incorporation) (Scotland) Act 2024 means for the Public Sector

The United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024 (the "Act") places a number of responsibilities on Scottish public bodies to take proactive steps to ensure the protection of children’s rights. Scottish public bodies must consider and implement the Act across all services and decision-making processes.

Various bodies are also subject to reporting requirements.  It is therefore important for public bodies to understand the implications of the Act and the legal requirements they must adhere to as summarised below.

Overview of Act

The Act comes into force on 16 July 2024 making Scotland the first UK country to embed the United Nations Convention on the Rights of a Child ("UNCRC") into domestic law.

As a reminder, the UNCRC is an international human rights treaty that grants all children and young people a comprehensive set of rights. It comprises 54 articles that detail children's rights and how governments should guarantee those rights are available to all children. The UNCRC also contains four 'General Principles' which stipulate a rights-based approach to decision-making.

The Act imposes a number of obligations on public authorities. Importantly, "public authority" includes the Scottish Ministers, a court or tribunal and any person having some functions of a public nature. So, the Act will catch an audience similar to that of the Human Rights Act 1998.

"Public functions" are generally understood to be functions performed for the collective benefit of the general public. The Act also specifies that functions carried out under contract or other arrangement with a public authority are caught in the public functions category.

Key Articles for public bodies to consider

Section 6: Acts of public authorities to be compatible with the UNCRC requirements

Section 6 deems it unlawful for a public authority to act in a way which is incompatible with or fail to act in a way which is compatible with the UNCRC requirements. Importantly, this applies not only to specific functions of a public authority but to all acts of public authorities that are within the legislative competence of the Scottish Parliament. This will cover decisions of a public authority as well as recommendations, preliminary decisions, advice and reports.

Sector 7-9: Remedies of unlawful acts

Sections 7-9 contain processes for seeking a remedy where it is claimed a public authority has acted or intends to act unlawfully. Children must be given the opportunity to express their view on the effectiveness of any proposed remedy or relief and the court or tribunal must have regard to those views, taking into account the child's age and maturity.

Section 18: Reporting duty of listed authorities 

Section 18 requires listed authorities (as identified in Section 19) to publish a report every three years detailing what they have done and what they plan to do to meet UNCRC requirements. Listed authorities include local authorities, health boards and Non-Departmental Public Bodies.

Potential impact for the Public Sector

As a whole, the Act seeks to place the interests of children at the forefront of the minds of decision-makers and ensure children's rights are a primary consideration in every decision affecting them.  

So, what do public bodies need to think about? If you are caught by the Act, then you will be required to assess how your decisions and actions will affect children. It is important to appreciate the wide range of decisions which can impact children, which could include planning and infrastructure decisions as well as the obvious ones relating to education or social work.

Whilst the Act requires only Scottish Ministers to carry out a formal assessment of the impact on the rights and interests of children, Scottish Government guidance recommends that all public authorities carry out Children's Rights and Wellbeing Assessments as a way of assisting public authorities to act in accordance with the relevant articles of the UNCRC and to assist with their reporting duty. This will inevitably involve gathering and analysing data and where a particular policy or decision is highly relevant to children or young people, involving them in the assessment process. Importantly, any assessment should take place at a formative stage, whilst it is still possible to influence the outcome and should not be carried out retrospectively. 

Many public authorities already assess how their decisions will impact children and young persons. However, the coming into force of the Act and the publication of the guidance should encourage public bodies to review existing processes, to improve decision-making and ensure compliance with the UNCRC.

You can view the Scottish Government's statutory guidance here.

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