Legislative Scrutiny: Police, Crime, Sentencing and Courts Bill (Parts 7 and 8): Sentencing and Remand of Children and Young People Contents

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4Incorporation of the UNCRC

83.The United Nations Convention on the Rights of the Child (UNCRC) has not been incorporated into domestic law. While the Scottish Parliament has voted to incorporate the UNCRC into Scottish law, this has not yet taken place. This means that any policy, or action by a limb of the state that is contrary to the obligations in the UNCRC cannot be directly challenged on this basis in a UK court. Furthermore, unlike in respect of the ECHR where even without incorporation an application could be made to the European Court of Human Rights, there is no international court to which claims for breach of the UNCRC can be brought.106 This lack of an international court emphasises the impact of non-incorporation on enforcing the rights of the child.

84.We asked the Lord Chancellor about incorporation of the UNCRC in July 2021. He responded that:

“I think that in essence it is unnecessary. We have in our domestic legislation very robust protections and safeguards for children that go well beyond the provisions within the convention. We are signatories to it. Article 4 of the convention says that the way in which the rights are to be enforced is a matter for the signatory state. That could be done via legislation if it chooses to do so, but not always. It is important to remember how far we have come with legislation on children and remind ourselves that we have some of the most rigorous safeguarding procedures in the world … “107

85.Although we agree that the UK has come a long way in protecting children, we heard of clear benefits of incorporating the UNCRC. Dr Janes explained how the current process of enforcing children’s rights is made more difficult by the lack of incorporation:

“Rights are, of course, only any good if they can be enforced. … At present, we have to do this sort of legal dance, whereby we have to find an article of the European Convention on Human Rights that bites and we then have to interpret it through the lens of the UN Convention on the Rights of the Child. That is too convoluted and, just as to incorporate would send out the right message, this sends out the wrong message.”108

86.Pippa Goodfellow thought that incorporation would have symbolic as well as practical benefits:

“As recently as 2018, the then Under-Secretary of State for Children and Families spoke about the Government’s commitment to the UNCRC and the pride in having signed it. If that is the case, the question for the Government is why they would not want to sign something that they have pride in our having signed up to. It would send a really positive message to children, and it would give all those who are working in the best interests of children additional tools and mechanisms by which they could make sure that their rights were upheld.”109

87.We have previously looked at whether the Government should incorporate the UNCRC into domestic law. In 2015, the Joint Committee on Human Rights reported on the UK’s compliance with the UNCRC.110 At that time the Government’s position was essentially the same as it is now - that the UK’s laws and policies were strong enough to comply with the Convention. Concerns were also raised at the potential complexity of incorporation.111 Nevertheless, we came to the view that:

“Ideally, we would like to see the United Nations Convention on the Rights of the Child incorporated into UK law in the same way that the European Convention on Human Rights has been incorporated by means of the Human Rights Act. However, we are mindful that these two Conventions differ considerably in how they are framed and in the mechanisms which exist to support them internationally. In practical terms more must be done to realise the aims of the United Nations Convention on the Rights of the Child through legislation and through policy. The Modern Slavery Bill shows this can be done in a particular policy area. If such a dedicated focus on children’s rights were manifest in legislation and policy across the board, much of the debate about incorporation versus non-incorporation would become an irrelevance …”

88.We recommend that the UNCRC be incorporated into UK law.