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Child Law and Legislative Competence in Scotland

In July 2016, the United Nations Committee on the Rights of the Child (CRC) published their concluding observations on the report published by the United Kingdom on the measures it has introduced to protect the rights of the child. In these observations, the UN scrutinised the UK’s report and critiqued the effectiveness of the UK - both as a whole and in terms of individual jurisdictions contained within it - on its implementation of the United Nations Convention on the Rights of the Child (UNCRC). The observations also include a report on what should be done by the UK government to ensure compliance with the UNCRC. While there were positive conclusions drawn for some aspects, such as the weight given to children’s views, there were criticisms on a multitude of areas. These included children being deprived of a family environment and issues surrounding the eradication of child poverty. This article will focus on the issues raised by the Committee and where their observations have been addressed in part by the Scottish government, namely focusing on protection from corporal punishment and the age of criminal responsibility.

On page 9 of the observations, the CRC suggested that the Scottish government should “prohibit as a matter of priority all corporal punishment in the family including through the repeal of all legal defences such as “reasonable chastisement”. Moreover, on page 21, it was noted by the CRC that “the minimum age of criminal responsibility remains 8 years in Scotland”. Recently, both these areas have been addressed by the Scottish Parliament:

There have been several Acts passed by the Scottish Parliament, some of which are not yet in force but should become law in early 2022; all these Acts relate to concerns raised by the Committee in their concluding observations. One notable Act that has come into force to deal with the observations of the CRC - The Children (Equal Protection from Assault) (Scotland) Act 2019, abolishes the defence of reasonable chastisement; however, it does not ban "smacking", as numerous articles in the press have reported. Instead, Section 1 of this Act provides that parental defence, which claims the physical punishment of a child is a parental right and therefore justifiable, ceases to have effect. Thus, the Act ends the defence of "reasonable chastisement” that could exonerate a parent from an assault charge, meaning parents could face prosecution for any use of physical punishment on their children. This Act was passed to give children the same legal protection from assault as adults have, in accordance with the UNCRC.

For some years now, there has been a real concern that the Scottish age of criminal responsibility for children has not complied with the UNCRC. Scotland’s current age of criminal responsibility, aged eight, is the lowest in Europe. Due to these valid concerns, the Scottish Parliament has legislated to raise the minimum age of criminal responsibility by passing the Age of Criminal Responsibility (Scotland) Act 2019. While not yet in force, Section 1 of the Act amends Section 41 of the Criminal Procedure (Scotland) Act 1995 instead declaring that “a child under the age of 12 years cannot commit an offence”. Once fully implemented, it will not be possible for children under 12 to be charged with or convicted of an offence. This clearly concentrates on the concern raised by the CRC.

A further piece of legislation passed but not yet in force, is less concerned with the observations of the UN but still highlights the legislative approach to protecting children in Scotland and aims to comply with the UNCRC (namely Article 12 concerned with the views of the child). The legislation concerned is the Children (Scotland) Act 2020. Section 1 of this new Act replaces the previous assumption in the Children (Scotland) Act 1995 that only children aged over 12 are mature enough to have their views heard in courts and in children’s hearings. When this legislation comes into force, the law will state that, when considering if a child is capable of forming a view, “the person is to start with the presumption that the child is”. This allows all children to be able to give their view, apart from in exceptional circumstances, where the child is not capax. Therefore, this new Act aims to put children and their views at the heart of the decision-making process.

Despite addressing these issues, Scottish attempts at implementing child law, specifically incorporating the UNCRC directly into Scots domestic law, have highlighted issues Scotland has with legislating within its devolved competence. Scotland has attempted to incorporate the Convention into its own law, through the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill which was unanimously passed in March 2021. This bill would mean that public authorities must not act in a way that is incompatible with the UNCRC and would give courts powers to decide if legislation is compatible with the UNCRC. The bill’s passage was delayed when the Attorney General and the Advocate General for Scotland (UK law officers), acting under Section 33 of the Scotland Act 1998, deferred the bill to the UK Supreme Court in April. It was deferred on the basis that the Scottish Government was acting ultra vires in incorporating the UNCRC and imposed duties on the UK Parliament which would be outside of Scotland’s developed legislative competence under Section 29 of the 1998 Act. The challenge was not based on the content of the legislation but rather on its potential legislative impact. On October 6, judges in the Supreme Court unanimously decided that four sections of the Bill go beyond the powers of the Scottish Parliament. It was held that the bill would give Scottish courts extensive powers to interpret and scrutinise primary legislation, restricting the UK’s government ability to make laws for Scotland and in breach of Section 28 of the Scotland Act 1998, This would give Scottish courts the opportunity to modify UK legislation outwith the legislative competence of Scotland. The bill will now go back to Holyrood to be reconsidered and amended with the Scottish government saying it is committed to bringing them into law "at the earliest possible opportunity”.

Scotland has made numerous attempts in recent years to improve children’s position in law, according to the provisions of the UNCRC. However recently, Scotland has faced issues in its efforts to do so due to devolution. Direct incorporation of the UNCRC has been held outwith its legislative competence. This not only raises issues on the extent to which children’s rights can be adequately protected in Scotland but also on devolution. .


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