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Draft version of the Children's Rights Scheme under the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024 (the UNCRC Act). This draft has not yet been laid before the Scottish Parliament.

Introduction

The purpose of the Children’s Rights Scheme

The Scottish Government’s aspiration is for Scotland to be the best place for children to grow up. The National Outcomes in our National Performance Framework describe Scotland’s vision for collective wellbeing, which include: We grow up loved, safe and respected, so that we realise our full potential; and We respect, protect and fulfil human rights and live free from discrimination. For these aspirations to be realised, a children’s human rights approach must be embedded into the institutions which govern and deliver public services for the people of Scotland. Maximising the realisation of the rights in the United Nations Convention on the Rights of the Child (UNCRC) should also support the First Minister’s priority to eradicate child poverty, and mainstreaming children’s rights across Government should help to ensure sustainable and excellent public services, which is another of the Scottish Government’s four priorities (alongside growing the economy and tackling the climate crisis).

This is why Section 14 of the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024 (the UNCRC Act) requires the Scottish Ministers to make a scheme, to be known as the Children’s Rights Scheme (the Scheme), which sets out the arrangements that they have made, or propose to make, to ensure that they comply with the compatibility duty under section 6 of the Act and to secure better or further effect of the rights of children. This is that Scheme, the first to be laid before the Scottish Parliament.

The requirements for a Scheme supplant the Scottish Ministers’ previous reporting duties under Part 1 of the Children and Young People (Scotland) Act 2014 (the 2014 Act). That Act required Ministers to keep under consideration whether there were any steps which they could take which would or might secure better or further effect in Scotland of the UNCRC requirements and, in complying with that duty, take such account as they considered appropriate of relevant views of children. Ministers were required to report to the Scottish Parliament every three years on relevant progress and their plans for the subsequent three-year period.

The UNCRC Act does not specify the period for which the arrangements in this new Scheme should apply. To maintain some consistency with the approach in the 2014 Act, this first Scheme has been prepared with the intention that its arrangements should remain in place for at least three years. To strengthen accountability, there is a statutory duty in section 16 of the UNCRC Act for Ministers to review the Scheme annually. There is also a corresponding duty to report on the findings of the regular review of the Scheme, which will include updates on progress. (For more on this, see ‘Conclusion and Reporting and Reviewing Timescales’.)

The decision to draft the arrangements with a view to their being in place for at least three years was also taken to ensure that there is enough time between setting the first actions and considering the need for new actions and to avoid overburdening children and the children’s rights sector with consultation demands. The UNCRC Act states (in section 16(5)) that if any new actions are to be included in the reports on the Scheme, Scottish Ministers must consult with: children, the Children and Young People’s Commissioner Scotland (CYPCS); the Scottish Human Rights Commission (SHRC); and any other persons the Scottish Ministers consider appropriate.

The focus within this Scheme, not only on arrangements for complying with the section 6 duty, but also on securing better or further effect of the rights of children, is important in demonstrating Ministers’ continued commitment to promoting and delivering the original aim and ambition which underpinned the Act. (As a result of the Supreme Court judgment on the original UNCRC Bill that was passed in March 2021, the section 6 duty does not apply to the delivery of functions conferred by Acts of the UK Parliament, even in devolved areas.) The expectation to give better or further effect to children’s rights means that the Scheme’s focus must include how Scottish Ministers are progressing children’s rights beyond compliance with the section 6 duty. The focus is on embedding a children’s rights culture across the delivery of all public services in Scotland, regardless of the legal source of those duties.

Consultation on the Scheme

Section 15 of the Act sets out the procedures that the Scottish Ministers must follow to prepare and make the Scheme. It states that before publishing the first Scheme, Scottish Ministers must consult with children, the Commissioner for Children and Young People in Scotland, the Scottish Human Rights Commission, and such other persons as the Scottish Ministers consider appropriate. On this occasion the “other persons” consulted have been members of the UNCRC Strategic Implementation Board, through which we also received detailed comments from Together (Scottish Alliance for Children’s Rights) and UNICEF (UK). Consultation began with the circulation of an early draft of the Scheme to the Strategic Implementation Board in November 2023 before formal targeted consultation with: the Commissioner for Children and Young People in Scotland; the Scottish Human Rights Commission; Together; and UNICEF (UK) between early July and late September 2024 and engagement with children via a survey and workshops that were undertaken by Young Scot between mid-February and the end of March 2025.

Annex A explains how that consultation and engagement informed revisions to this published version of the Scheme.

Scotland and the UNCRC

The UNCRC was adopted by the General Assembly of the United Nations in 1989 and is the most widely ratified treaty in the world. It sets out the civil, political, economic, social and cultural rights that all children, everywhere in the world, should expect to enjoy. These include (but are not limited to) rights relating to health and education, leisure and play, fair and equal treatment, protection from exploitation, and the right for children’s views to be expressed regarding matters which affect them, and for those views to be taken seriously by adults. The mutually reinforcing nature of human rights means that the rights expressed within the 42 Articles of the UNCRC all have equal status. Every child has these human rights regardless of their or their parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.

The UNCRC was ratified by the UK Government in 1991, and Scotland has a proud tradition of promoting children’s rights. Children’s rights are embedded in how public services are delivered through specific pieces of legislation and policy such as the 2014 Act and ‘Getting it Right for Every Child’ (the national approach in Scotland to improving outcomes and supporting the wellbeing of children by offering the right help at the right time from the right people). These, among others, have been essential milestones in Scotland’s journey to incorporate the UNCRC into Scots Law.

The United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill was passed unanimously by the Scottish Parliament on 16 March 2021. The Bill sought to incorporate as much of the UNCRC as possible into Scotland’s domestic law, within the limits of devolved competence, including the first optional protocol on the involvement of children in armed conflict and the second optional protocol on the sale of children, child prostitution and child pornography.

In April 2021, a reference of certain provisions of the Bill was made by the Attorney General and the Advocate General for Scotland to the UK Supreme Court. The provisions referred to the Supreme Court were sections 6 (the duty on public authorities to act compatibly) and sections 19 to 21 (the interpretation duty and judicial powers of ‘strike down’ and ‘incompatibility declarator’, now sections 24 to 26 of the Act). In October 2021, the UK Supreme Court ruled that the provisions referred fell outwith the competence of the Scottish Parliament. The Bill was amended to address the Supreme Court judgment and was unanimously approved at Reconsideration Stage by the Scottish Parliament on 7 December 2023, receiving Royal Assent on 16 January 2024. The Act came into force on 16 July 2024.

The intent behind the UNCRC Act is to deliver a proactive culture of everyday accountability for children’s rights across public services in Scotland. It requires all of Scotland’s public authorities to take steps to ensure the protection of children’s rights in their decision-making and service delivery and makes it unlawful for public authorities, including the Scottish Government, to act incompatibly with the UNCRC requirements as set out in the Act when delivering a ‘relevant function’ as defined in section 6(2) of the Act. Children and their representatives have a new ability to use the courts to enforce their rights. The Act also requires that, in so far as it is possible to do so, Acts of the Scottish Parliament are interpreted and given effect to in a way that is compatible with UNCRC requirements and includes powers to allow the courts to make strike down or incompatibility declarators in respect of incompatible Scottish legislation.

Duties on public authorities under the Act also apply when these functions are ‘contracted out’ to non-State actors such as private or third-sector bodies. This means the duty may apply to organisations in the private, voluntary and independent sectors which are supporting children’s rights. (See section 2.1 for more on this.)

At the time of publication of this Scheme, the Scottish Government was seeking to add an exemption to the section 6 compatibility duty via the Children (Withdrawal from Religious Education and Amendment of UNCRC Compatibility Duty) (Scotland) Bill. The exemption would make clear that the compatibility duty does not apply if a public authority is delivering its statutory functions in fulfilment of another duty derived from an Act of the Scottish Parliament that prevents them from acting compatibly. Without this exemption, public authorities could theoretically be left having to decide whether to act in a way that puts them in breach of the compatibility duty in the UNCRC Act or to act in a way that puts them in breach of the legislation that conferred their separate statutory duty. The exemption is intended to remove that uncertainty and improve legal coherence. Adding the exemption would also ensure that the delivery of essential services that support children can continue, while we consider whether there’s a need for any reform. This amendment would be similar to an exemption in the Human Rights Act 1998, and an exemption already in the UNCRC Act for when public authorities are exercising functions from UK Acts. 

Further information on the scope and extent of the duties under the Act for public authorities can be found in Statutory Guidance on Part 2 (duties on public authorities). Specific guidance the reporting duty of listed authorities is also provided for authorities listed in section 19 of the Act in Statutory Guidance on Part 3.

The UNCRC Implementation Programme

Although this is the first Children’s Rights Scheme to be published by Scottish Ministers, this is not the first time that Ministers have set out how they will secure better or further effect of the rights of children.

The Scottish Government has previously published action plans for children’s rights, under Part 1 of the 2014 Act. The most recent of these was the 2021-2024 action plan published in November 2021. A report on the 2021-2024 action plan was published in November 2024. It highlighted the important progress that has been made to give better and further effect to the UNCRC. As well as the UNCRC Act and its statutory guidance, we also have a broad range of resources and support to help public authorities understand how to take a children’s human rights approach; and to help children raise a rights concern and seek remedy. For a full list of what has been achieved, please see Progressing the human rights of children in Scotland: update report 2021-2024.

This first Scheme sets out how we will build on this and commits to a long-term focus on children’s human rights.

Terminology used to refer to under 18s

Article 1 of the UNCRC clearly states that, for the purposes of the UNCRC, “a child means every human being below the age of eighteen years”. While we sometimes use the terms babies, infants, children and young people to refer to those to whom the UNCRC rights apply and the UN Committee in the Rights of the Child generally uses the term ‘children’, unless discussing issues that are specific to a particular age group. We considered taking the same approach as the UN Committee, in the terminology used in this Scheme to refer to under 18s. However, the 9-18 year olds who were consulted about the draft commitments in the Scheme expressed a preference for the terminology ‘children and young people’. Unless quoting other sources, from here on in, this is therefore the term used in the Scheme to refer to under 18s.

Child friendly version

An accessible version of this Scheme, which may be easier for children and young people to read, will be available when the Scheme is laid before the Scottish Parliament.

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