Earlier this year, the Scottish Government incorporated the United Nations Convention on the Rights of the Child into Scottish Law. In broad terms, the act will protect children’s rights by enshrining them in law and placing legal obligations on public authorities to comply with the UNCRC requirements in the delivery of their public functions.
While the Act is primarily aimed at the statutory sector, it does also have important implications for the third sector. This guidance will clarify who will be affected, and what steps to take next for those are.
A Brief History of the Act
Arising from the UN General Assembly 1948, The UN Convention on the Rights of the Child (UNCRC) affirms the significance of human rights for children up to the age of 18. Ratified by the UK government in 1991, the UNCRC acts as a wholistic children’s rights framework that informs government policy and programmes regarding the fulfilment of the rights of children.
The UNCRC consists of 54 articles where the rights of the child are outlined. The first 42 contain the substantive rights and obligations (such as freedom from violence and the right to housing) that States must uphold, while the final 12 concern procedures for signature, ratification and amendment of the treaty.
Those 54 articles have now been signed into Scottish law under the UNCRC (Incorporation) (Scotland) Act 2024.
What Does the Act Say?
New legal duties for all public authorities (including Scottish Ministers) will ensure that children’s rights are protected to the fullest extent possible. Public authorities will be required not to act incompatibly with the UNCRC requirements.
All public functions of any public authority (functions performed for the collective benefit of the general public) will have to comply with the UNCRC requirements. In practice this means that an action (or proposed action) taken by a public authority must not encroach upon the rights of a child. An action that did not, for instance, allow for a child to express their views on said action could be in breach of Article 12, which grants children the right to express their views on matters which affect them, and for those views to be taken into consideration.
Public authorities will have to carefully consider how their various operations are affected by the requirements and make changes as appropriate. Legal remedies and proceedings relating to any breach of the requirements are also detailed within the Act.
Who Qualifies as a Public Authority?
Any organisation recognised as a public authority falls within the scope of the Act. For the purposes of definition, it is helpful to refer to case law developed under the Human Rights Act (1998), which distinguishes between “core” and “hybrid” public authorities.
“Core” public authorities are defined as “bodies that so obviously have the character of a public authority that it is not necessary to mention them”. Examples of “core” public authorities include local authorities, the Scottish Police Authority, the Scottish Housing Regulator and Bòrd na Gàidhlig among others. All actions taken by “core” public authorities are considered public functions and must adhere to the UNCRC requirements.
“Hybrid” public authorities on the other hand carry out a mixture of private and public functions, and only fall under the scope of the Act regarding the former. A “hybrid” public authority is understood to be carrying out a public function when “in carrying out the relevant function the body is publicly funded, or is exercising statutory powers, or is taking the place of central government or local authorities or is providing a public service”.
Many voluntary and third sector organisations may qualify as “hybrid” public authorities. If you are unsure about whether you qualify, the following questions are worth considering:
– Is there an arrangement between a known or recognised public authority (core or hybrid) and the private person or organisation?
– Does the arrangement involve a function that delivers a public service?
– Is the service being delivered under contract or any other arrangement, one which the public authority would also have a legal responsibility or duty to deliver?
Any organisation (or individual) answering yes to any of these questions is most likely carrying out a public function and must ensure that they are not in breach of the UNCRC requirements.
What to do if You are Deemed a Public Authority
If you have reason to believe that you or your organisation will be affected the UNCRC (Incorporation) (Scotland) Act 2024 then best practice is to familiarise yourself with the statutory guidance provided by the Scottish Government. The guidance can be found here.
It would also be worth familiarising yourself with the Scottish Government’s Principles of Inclusive Communication and this summary of the UNCRC articles themselves.
If you have any questions, please send them to: robert@volunteereastlothian.org.uk.
