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United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024

Type Act of the Scottish Parliament

Publication 2024-01-16

State In force

Jurisdiction Scotland

Department Statute Law Database

Source legislation.gov.uk

Reform history JSON API

Part 1 — The UNCRC requirements

Meaning of “the UNCRC requirements” and related expressions

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(1) In this Act—

“the Convention” means the United Nations Convention on the Rights of the Child adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989,

“the first optional protocol” means the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict,

“the second optional protocol” means the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography.

(2) In this Act, “the UNCRC requirements” means the rights and obligations from the Convention, the first optional protocol and the second optional protocol that are set out in the schedule.

(3) The UNCRC requirements have effect for the purposes of this Act subject to any reservations, objections or interpretative declarations by the United Kingdom as may be in force from time to time.

Meaning of references to States Parties and related expressions in the UNCRC requirements

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(1) References in the UNCRC requirements to a State Party, States Parties and related expressions are to be read for the purposes of this Act as set out in subsections (2) and (3).

(2) Unless subsection (3) applies—

(a) a reference to a State Party is to be read as including reference to a public authority, and

(b) a reference to States Parties is to be read as including reference to public authorities.

(3) In the articles of the UNCRC requirements mentioned in column 1 of the following table, references relating to a State Party, States Parties or (as the case may be) related expressions are to be read as set out in column 2 of the table.

Articles of the UNCRC requirements	Modifications
Article 2 of the Convention	In paragraph 1, the reference to “their jurisdiction” is to be read as “Scotland”.The references to “States Parties” are to be read as “Any Scottish public authority or cross-border public authority carrying out Scottish functions other than any function that relates to the inclusion of persons in non-executive posts on boards of Scottish public authorities with mixed functions or no reserved functions”.
Article 7 of the Convention	In paragraph 2, the reference to “their obligations” is to be read as a reference to “the obligations of the United Kingdom”.
Article 22 of the Convention	In paragraph 1, the reference to “the said States are Parties” is to be read as “the United Kingdom is a party”.
Article 27 of the Convention	In paragraph 4, the reference to “the State Party” is to be read as “Scotland”.
Article 38 of the Convention	In paragraph 1, the reference to “them” is to be read as a reference to “the United Kingdom”.In paragraph 4, the reference to “their” is to be read as a reference to “the United Kingdom’s”.
Article 6 of the first optional protocol	In paragraph 1, the reference to “its jurisdiction” is to be read as “Scotland”.In paragraph 3, the reference to “their jurisdiction” is to be read as “Scotland”.
Article 4 of the second optional protocol	In paragraphs 1, 2 and 3, each reference to “its territory” is to be read as “Scotland”.

(4) In the modifications relating to article 2 of the Convention in the table—

“cross-border public authority” has the meaning given in section 88(5) of the Scotland Act 1998,

“non-executive post” and “Scottish functions” have the meaning given in Section L2 (equal opportunities) of Part 2 of schedule 5 of that Act,

“Scottish public authority” has the meaning given in section 126(1) of that Act,

“Scottish public authorities with mixed functions or no reserved functions” has the meaning given in paragraphs 1 and 2 of Part 3 of schedule 5 of that Act.

Power to modify the schedule

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(1) The Scottish Ministers may by regulations modify the schedule as they consider appropriate to—

(a) take account of an optional protocol to the Convention,

(b) take account of an amendment to the Convention or to an optional protocol to the Convention,

(c) add provisions of the Convention, the first optional protocol or the second optional protocol that are not for the time being set out in the schedule.

(2) Regulations may be made under subsection (1)(a) only if the protocol is one which the United Kingdom has ratified.

(3) Regulations may be made under subsection (1)(b) only if the amendment is one which is binding on the United Kingdom.

(4) No modification may be made by regulations under subsection (1)(a) or (b) so as to come into force before the protocol or amendment has entered into force in relation to the United Kingdom.

(5) Regulations under subsection (1) may make such consequential modification to sections 1, 4, 15 and 42 as the Scottish Ministers consider appropriate.

(6) Before laying a draft of a Scottish statutory instrument containing regulations under subsection (1) before the Scottish Parliament, the Scottish Ministers must consult—

(a) the Commissioner for Children and Young People in Scotland,

(b) the Scottish Commission for Human Rights, and

(7) Regulations under subsection (1) are subject to the affirmative procedure.

Interpretation of the UNCRC requirements

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(1) A court or tribunal which is determining a question in connection with the UNCRC requirements which has arisen in proceedings before it may take into account the things mentioned in subsection (2) so far as it is relevant to the interpretation of the UNCRC requirements in those proceedings.

(2) The things are—

(a) provisions of Part 1 of the Convention, the first optional protocol and the second optional protocol that are not for the time being set out in the schedule,

(b) the preambles to the Convention, the first optional protocol and the second optional protocol,

(d) concluding observations (whenever made),

(e) views and findings under the third optional protocol (whenever adopted),

(f) recommendations following days of general discussion (whenever made),

(g) other international law and comparative law.

(3) In subsection (2)—

“concluding observations” means suggestions and general recommendations made by the United Nations Committee on the Rights of the Child under article 45, paragraph (d) of the Convention,

“General Comments” means comments prepared by the United Nations Committee on the Rights of the Child under rule 77 of its rules of procedure,

“recommendations following days of general discussion” means recommendations made by the United Nations Committee on the Rights of the Child following days of general discussion under rule 79 of its rules of procedure,

“views and findings under the third optional protocol” means— views adopted by the United Nations Committee on the Rights of the Child under article 10, paragraph 5 of the third optional protocol, and findings, comments and recommendations adopted by the United Nations Committee on the Rights of the Child under article 13, paragraph 4 of the third optional protocol.

(4) In this section and section 5, “the third optional protocol” means the Optional Protocol to the Convention on the Rights of the Child on a communications procedure.

Duty to modify section 4 on ratification of the third optional protocol to the Convention

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(1) If the United Kingdom ratifies the third optional protocol, the Scottish Ministers must by regulations modify section 4 as they consider appropriate to take account of the third optional protocol.

(2) No modification may be made by regulations under subsection (1) so as to come into force before the third optional protocol has entered into force in relation to the United Kingdom.

(3) Regulations under subsection (1) are subject to the negative procedure.

Part 2 — Duties on public authorities

Acts of public authorities to be compatible with the UNCRC requirements

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(1) It is unlawful (subject to subsection (4)) for a public authority to act, or fail to act, in connection with a relevant function in a way which is incompatible with the UNCRC requirements.

(2) In subsection (1), a “relevant function” means a function that—

(a) it is within the legislative competence of the Scottish Parliament to confer on the authority, and

(b) is conferred by—

(i) an Act of the Scottish Parliament,

(ii) a Scottish statutory instrument originally made wholly under a relevant enabling power,

(iii) a provision in a Scottish statutory instrument originally made partly under a relevant enabling power, provided that the provision itself was either—

(A) originally made under the relevant enabling power, or

(B) inserted into the instrument by an Act of the Scottish Parliament or subordinate legislation made under a relevant enabling power, or

(iv) a rule of law not created by an enactment.

(3) In subsection (2), “relevant enabling power” means a power to make subordinate legislation conferred by a provision in an enactment of a kind mentioned in that subsection, unless the provision was inserted by an enactment of a kind that is not mentioned in that subsection.

(4) But subsection (1) does not make unlawful doing or failing to do something if the authority was required or entitled to act in that way by words that—

(a) are not contained in an enactment of a kind mentioned in subsection (2)(b), or

(b) are contained in such an enactment having been inserted into it by an enactment of a kind that is not mentioned in subsection (2)(b).

(5) In this section, “public authority”—

(a) includes, in particular—

(i) the Scottish Ministers,

(ii) a court or tribunal,

(iii) any person certain of whose functions are functions of a public nature (but see subsection (8)),

(b) does not include the Scottish Parliament or a person carrying out functions in connection with proceedings in the Scottish Parliament.

(6) For the purposes of subsection (5)(a)(iii), “functions of a public nature” includes, in particular, functions carried out under a contract or other arrangement with a public authority.

(7) Functions are not excluded from being functions of a public nature for the purposes of subsection (5)(a)(iii) solely because they are not publicly funded.

(8) In relation to a particular act, a person is not a public authority by virtue only of subsection (5)(a)(iii) if the nature of the act is private.

Remedies for unlawful acts

Proceedings for unlawful acts

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(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6 (1) may—

(a) bring proceedings against the authority under this Act in any civil court or tribunal which has jurisdiction to grant the remedy sought, or

(b) rely on the UNCRC requirements concerned in any legal proceedings.

(2) In subsection (1)(a), proceedings against an authority include a counterclaim or similar proceeding.

(3) In subsection (1)(b), “legal proceedings” includes—

(a) proceedings brought by or at the instigation of a public authority, and

(b) an appeal against the decision of a court or tribunal.

(4) Subsection (1) does not apply to an act which took place before this section comes into force but paragraph (b) of that subsection applies to proceedings brought by or at the instigation of a public authority whenever the act took place.

(5) The Scottish Ministers must, if they consider it necessary to ensure that a particular tribunal can provide an appropriate remedy in relation to an act (or proposed act) of a public authority which is (or would be) unlawful as a result of section 6 (1), bring forward regulations to add to—

(a) the relief or remedies which the tribunal may grant,

(b) the grounds on which it may grant any of them, or

(6) In subsection (5), “bring forward regulations” means lay before the Scottish Parliament for approval a draft of a Scottish statutory instrument containing regulations to make the provision they consider necessary.

(7) Before laying a draft of a Scottish statutory instrument containing regulations under subsection (5) before the Scottish Parliament, the Scottish Ministers must consult—

(a) the Commissioner for Children and Young People in Scotland,

(b) the Scottish Commission for Human Rights, and

(8) Regulations under subsection (5) are subject to the affirmative procedure.

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