Elected Member Briefing - UNCRC incorporation into Scottish law

This Briefing Note is intended to provide information on legislation passed to incorporate the United Nations Convention on the Rights of the Child (UNCRC) into some areas of Scottish law.

Briefing Information

What is UNCRC?

The United Nations Convention on the Rights of the Child (UNCRC) is an international human rights treaty that grants all children and young people a comprehensive set of rights. All countries that sign up to UNCRC are bound by international law to ensure that the rights are given effect to in their country. The UK has been a signatory to the UNCRC since 1990.

The UNCRC consists of 54 articles that set out children's rights and how governments should work to make them available to all children, with recognition that children are more vulnerable than adults and need special protection.

Under the Convention, governments are required to meet children's basic needs and help them reach their full potential. There are four articles which are known as the General Principles and these help to interpret other rights and are at the heart of a rights-based approach to decision making and service delivery:

Children shouldn't be discriminated against.
The best interests of children should be a primary consideration in decision making.
Children have the right to survive and develop.
Children have the right to have their views heard and taken seriously.

Many of our laws relating to children are already written in a way which gives effect to the UNCRC rights, for example by placing children's welfare at the centre of decision making about their care and protection and ensuring that children's views are sought and taken into account in key decisions that affect their care.

UNCRC incorporation in Scotland

The ambition of the government is to deliver a proactive culture of everyday accountability for children's rights across public services in Scotland. To give effect to that, legislation has been passed to incorporate the UNCRC into some areas of Scottish law.

There was delay finalising the legislation because of a Supreme Court challenge by the UK government. However, the legislation has now been passed. New duties under the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024 will come into force in July 2024. The Act aims to ensure that:

children's rights are respected and protected in the law in Scotland.
public authorities (including Councils) are legally required to respect and protect children's rights in some of the work that they do.

What this means for the Council

The UNCRC Act introduces some new legal duties for Councils and other public bodies such as the NHS and Police Scotland.

It is important to note that these new duties only apply to some Council functions. The duties in the Act will only apply to local authority functions which come from Acts of the Scottish Parliament. Many of our functions are still found in UK Acts of Parliament (including some aspects of education and social work) which means that the UNCRC duties will not apply to everything the Council does.

Nevertheless, the UNCRC Act is a significant piece of legislation for local authorities and other public authorities to implement. When the Act comes into force, children and young people will be able to hold "duty bearers" such as local authorities to account in areas where the Act applies. Councils will need to:

Act in a way that is compatible with the UNCRC when delivering functions which come from Acts of the Scottish Parliament
Report every three years on what they are doing, and plan to do, to meet the UNCRC requirements.

It will be unlawful for the Council to act incompatibly with the UNCRC's requirements when delivering devolved functions which come from Acts of the Scottish Parliament.

Even where the legal duties do not apply (where the function or area of work does not come from an Act of the Scottish Parliament), the Council should still aim, as a matter of good practice, to adopt a children's rights approach in all of its decision-making and service delivery. Adopting this approach will be the best way of ensuring that the Council complies with its legal obligations in relation to UNCRC while also adopting an approach which recognises the importance of children's rights across all of the Council's work.

Next Steps

The Council already uses a children's rights approach in many areas of its work. There are many examples of this in education and social work, but also in other areas such as in relation to child poverty, the consultation on the Local Development Plan and Big Place Conversation. There is also national work going on in some areas which is relevant to UNCRC, such as The Promise and child-friendly complaints processes.

In 2022/3, self-assessment work around readiness for UNCRC implementation was undertaken in conjunction with the Improvement Service. This work will continue and will form the basis of identifying actions which will be taken forward to ensure that the Council continues to make progress on further embedding children's rights both ahead of the Act's implementation date and on an ongoing basis. This is in line with one of the key principles of UNCRC which requires public bodies to ensure that a children's rights approach continues to evolve on an ongoing basis.

Further information

The Scottish Government has published non-statutory guidance called Taking a Children's Rights Approach to help public bodies to prepare for the new legislation. This provides a useful summary of the UNCRC and a children's rights approach.

The Improvement Service has produced a Guide for Elected Members on UNCRC which provides a comprehensive overview of the Act and how this will affect Councils in practice.

Last modified on 25 April 2024

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