Does legal incorporation of the UNCRC matter?

4 Sep 2020

In a new blogpost, Professor Ursula Kilkelly and Professor Laura Lundy consider the Scottish Government's commitment to incorporating the United Nations Convention on the Rights of the Child into law. What does this mean and why does it matter for children's rights?

The Scottish Government has just announced its legislative programme, with a Bill to incorporate the United Nations Convention on the Rights of the Child into Scots law high among the limited number of Bills it intends to pass before the country goes to elections in May next year. Indeed Scotland’s First Minister, Nicola Sturgeon called it a “revolution in children’s rights.” But given that the UK ratified the UNCRC in 1991, is there really any need for Scotland to pass additional legislation to incorporate it into domestic law?

Legal incorporation matters

We know from international experience that legal incorporation matters. While ratification signals an international commitment to children’s rights, incorporation makes countries accountable at a national level for their implementation. This week’s introduction of the UNCRC (Incorporation) (Scotland) Bill to the Scottish Parliament is therefore highly significant. When passed, this will mean that the UNCRC will become binding in Scots law for the first time. It will bind public authorities to act in a manner that is consistent with children’s rights and crucially, it means that children and their families will have recourse to the law if their rights, such as the right to education or access to healthcare, are breached by public authorities.

In treading this path, Scotland will be following in the footsteps of an increasing number of other countries including Norway, Finland, Iceland and most recently Sweden, which have incorporated the UNCRC into national law. The Norwegian experience shows that this is an important way to ensure systematic and effective legal implementation of the UNCRC at a national level. The same is true, at a different level, of countries such as Canada, New Zealand and South Africa, all of which have incorporated selected provisions into national or even constitutional law, with gradually transformative effects on the extent to which national law complies with the UNCRC.

A greater culture of respect

Aside from the legal significance of this measure, experience shows that giving effect to the UNCRC at a national level has impacts outside the legal system too. It means that decision-making by policy makers is better informed by the rights of the child, and it gives leverage to those whose job it is to hold government to account on behalf of children for the protection and promotion of their rights. It has also been shown to generate a greater culture of respect for children as individuals, leading to important reforms and other progressive changes in how children are treated.

Learning also shows us that there is real value in the process of legal incorporation. The public and political debate around incorporation helps to raise greater awareness and understanding of children’s rights and the UNCRC. In Norway, for instance, the process of incorporation was a critical point in the development of a children’s rights culture, with a knock-on effect on the progressive development of child law. Similar experience is evident from the process of inserting children’s rights into the Irish Constitution in 2012, which followed a sustained campaign of advocacy and public debate and has supported child law to take greater account of children’s rights.

As Scotland moves to incorporate the UNCRC into law, it is fortunate to be able to build on the learning from these countries. In creating its own history, children and young people have been at the centre of the campaign in Scotland and that there is now strong support across civil society, parenting groups and Parliamentarians for this important development. With the political commitment to enshrine children’s rights in law and widespread support for incorporation, Scotland is now building the momentum needed for a culture change in which children’s rights are truly recognised and fully realised.

About the authors

Ursula Kilkelly (BA, LLM, PhD) is a professor of law at University College. Cork, with an established profile in children's rights and youth justice. At UCC, she is Head of the College of Business and Law. Ursula's research area is international children's rights law, with a focus on legal implementation of international children's rights standards. She has additional expertise in youth justice and detention and has published and researched widely in these areas. http://research.ucc.ie/profiles/B012/ukilkelly  

Laura Lundy is Co-Director of the Centre for Children’s Rights and a Professor in the School of Social Sciences, Education and Social Work at Queen’s University, Belfast. She is co-Editor in Chief of the International Journal of Children’s Rights. Her expertise is on the implementation of the UNCRC, children's right to participate in decision-making and education rights. https://pure.qub.ac.uk/en/persons/laura-lundy 

Further reading

The UN Convention on the Rights of the Child: a study of legal implementation in 12 countries

Laura Lundy, Ursula Kilkelly, Bronagh Byrne and Jason Kang

This report looks at the implementation of the UNCRC in countries beyond the UK, compiling evidence on the most effective, practical and impactful ways of embedding children’s rights into domestic law and policy development processes. The 12 countries were chosen to demonstrate the variety of ways in which different countries have chosen to legislate for children’s rights and to implement the different articles of the Convention. Available at https://www.unicef.org.uk/wp-content/uploads/2012/11/UNICEFUK_2012CRCimplementationreport-FINAL-PDF-version.pdf 

The UN Convention on the Rights of the Child: Incremental and Transformative approaches to Legal Implementation

Professor Ursula Kilkelly, School of Law, University College Cork

Professor Kilkelly draws on research to map and then discuss critically the advantages and disadvantages of different legal and non-legal measures to embed the CRC in national law, policy and practice. She concludes that legislative incorporation can be truly transformative, with non-legal measures highly useful to build momentum and social change. Available at: https://www.tandfonline.com/doi/abs/10.1080/13642987.2018.1558974