16 January 2024
6.Part 1 deals with the interpretation of key concepts used in the subsequent Parts.
7.The rights and obligations that the Act’s later Parts deal with are labelled as “the UNCRC requirements” by section 1. They are derived from the Convention and the 2 optional protocols ratified by the United Kingdom. The text of those parts of the Convention and its optional protocols that are comprehended by the label “the UNCRC requirements” is set out in the schedule (the content of which may be changed in future by regulations under section 3).
8.In public international law, the Convention and its optional protocols have effect in relation to the United Kingdom subject to any reservations, objections or interpretative declarations made by the United Kingdom. Section 1(3) provides that, for the Act’s purposes, the UNCRC requirements are to have effect subject to the same reservations, objections and interpretative declarations as apply, in public international law, to the treaty obligations of the United Kingdom from which the UNCRC requirements are derived.
9.The UNCRC requirements refer throughout to States Parties. The purpose of section 2 is to allow such references to be read generally as including references to public authorities under the Act. There are also certain places in the UNCRC requirements where a reference to States Parties, to a State Party or to a related expression like “jurisdiction” or “territory” needs to be read as something different to make sense in the domestic context, so the table in subsection (3) provides for those references to be read with modifications to achieve that effect.
10.In relation to article 2 of the Convention as set out in the UNCRC requirements, the table also contains a modification so that the reference in that article to States Parties is read as a reference to a more restricted class of public authority, for reasons of legislative competence.
11.Section 3 gives the Scottish Ministers the power, by regulations, to modify the terms of the schedule, which sets out the text of those parts of the Convention and its optional protocols that are comprehended by the label “the UNCRC requirements”. By changing the terms of the schedule, the Scottish Ministers can therefore change what is required of those public authorities that the later Parts of the Act oblige (when exercising certain functions) not to act incompatibly with the UNCRC requirements.
12.The Scottish Ministers’ regulation-making power to change what constitutes the UNCRC requirements is subject to limitations. Provisions from the Convention and its first and second optional protocols that are already in the schedule cannot be removed. In relation to those sources, regulations can only add provisions not already included or make adjustments to reflect amendments to the treaties on which they are based.
13.The power to make changes to reflect amendments to the treaties can only be used to reflect amendments that are binding on, and in force in relation to, the United Kingdom as a matter of international law. Regulations modifying the schedule to reflect a treaty amendment can be made in advance of that amendment coming into force in relation to the United Kingdom, provided that the modification provided for in the regulations does not take effect before the treaty amendment enters into force.
14.The Scottish Ministers can also exercise the power to change what constitutes the UNCRC requirements to take account of optional protocols to the Convention other than the first and second (which are already covered by the schedule). The power to do so is restricted so that the schedule can only be modified to take account of protocols that have been ratified by the United Kingdom and the modifications cannot take effect until the protocol in question has entered into force in relation to the United Kingdom.
15.Sections 1, 4 and 15 specifically refer to the Convention and its first and second optional protocols. So if, for example, the schedule were to be modified by regulations to incorporate obligations arising from the third optional protocol, sections 1, 4 and 15 would need to be adjusted too in order to refer to that protocol. Section 3(5) enables the Scottish Ministers to make such changes to sections 1, 4 and 15 by regulations. There may also be a wish to include a definition in section 42, so that section may be amended too.
16.Regulations under section 3 are subject to parliamentary scrutiny by way of the affirmative procedure, which is set out in section 29 of the Interpretation and Legislative Reform (Scotland) Act 2010. It means that the regulations cannot be made unless the Scottish Parliament approves a draft of them. Section 3 further provides that draft regulations cannot be laid before the Parliament until the Scottish Ministers have consulted the Commissioner for Children and Young People in Scotland, the Scottish Commission for Human Rights and any other persons they consider it appropriate to consult.
17.Section 4 sets out sources of information a court or tribunal may wish to take into account when considering how the UNCRC requirements should be understood, so far as that is relevant to the interpretation of the UNCRC requirements in a given case.
18.As explained in paragraph 7, the schedule sets out the UNCRC requirements as derived from text of parts of the treaties. This means that the schedule does not include the full text of those treaties or their preambles. As a matter of public international law, the text of any part of a treaty has to be interpreted against the backdrop of the treaty’s full text and preamble. Some treaty text, or preamble text, not included in the schedule may have a bearing on the interpretation of text that is included in the schedule. Section 4 allows a court or tribunal that is determining a question about the UNCRC requirements to take into account any text of the treaty that is not currently set out in the schedule, as well as the treaty’s preamble, so far as it is relevant to the interpretation of the UNCRC requirements in a case.
19.Guidance about the meaning of the treaties from which the UNCRC requirements are derived may also be found in the work of the United Nations Committee on the Rights of the Child, a body established to monitor implementation of children’s rights under article 43 of the Convention. There are various procedural routes which can lead to the UN committee expressing formal views about the requirements of the treaties. One of the interpretative aids that section 4 allows domestic courts applying the UNCRC requirements to take into account, so far as relevant to the interpretation of the UNCRC requirements in a case, are the views formally expressed by the UN committee. Another is other international law, and comparative law (which is the socio-legal study of differences between legal systems).
20.Section 5 requires the Scottish Ministers to modify section 4 by regulations in the event that the United Kingdom ratifies the third optional protocol to the Convention. This might be used for example to add reference to any parts of the third optional protocol or the protocol’s preamble to the material that can be used for interpretative purposes.
21.The third optional protocol is defined for the purposes of section 5 in section 4.