Understanding of Scotland's incorporation of the UNCRC looks alarmingly muddled
No society that fails to respect and secure the fundamental rights of its children and young people has any entitlement to describe itself as genuinely humane or civilised. Sadly, many children in Scotland, and elsewhere, continue to live lives without the safety, security, affection and attention on which their wellbeing and future life chances depend.
The most powerful international articulation of these rights is the United Nations Convention on the Rights of the Child (UNCRC). Adopted in 1989, the UNCRC is an international treaty made up of 54 articles that aims to ‘articulate the civil, political, economic, social and cultural rights that all children everywhere are entitled to as well as the steps that governments must take to secure these rights’. It has been ratified by all United Nations member states except for the United States. The United Kingdom ratified the UNCRC in 1991.
However, the UNCRC does not mandate how these rights should be given practical effect. Most countries, including in the four UK jurisdictions to date, do not incorporate the UNCRC into domestic law. These countries rely on their own laws, policies and practices to ensure that the provisions of the Convention make a positive difference to the lives of children.
Other countries, including Norway, Finland, Sweden and Spain have taken a different approach and have included the UNCRC in their legal frameworks so that its provisions are enforceable in their own courts. As regular readers of Holyrood will be aware, the Scottish Parliament has decided to follow this path by means of the UNCRC Bill, the constitutional controversies surrounding which have continued to make headlines.
As a trade union representing teachers and leaders who work directly with children and young people, we have always been clear that the rights of the child set out in the UNCRC are fundamental. It is vital they are respected in policy and practice at national, local and school level. The UNCRC provides an important basis for supporting children and young people to flourish in all aspects of their lives and to develop and benefit from the universal human values of peace, dignity, tolerance, freedom, equality and solidarity.
Whether faithful and effective adoption of the UNCRC requires direct incorporation into domestic law is a subject of some debate. However, it is difficult to deny the symbolic impact of doing so, an important aspect of the approach adopted in Scotland, and the case for ensuring that rights can be enforced in domestic courts has considerable weight.
Notwithstanding the merits or otherwise of incorporation, the fact that it secures directly enforceable rights in domestic courts means that it is important that the meaning and implications of the UNCRC are fully appreciated. Its interactions with existing legal frameworks and rights, such as those relating to human rights, employment and health and safety need to be understood if legal coherence is to be maintained. To a considerable extent, these interactions have not been explored purposefully in Scotland – a significant shortcoming in public debates on incorporation.
However, perhaps most importantly, it is critical that attempts to implement the UNCRC must not be based on myths or flawed assertions about the Convention and its implications. Naturally, this will be important post-incorporation in Scotland but, given that the UNCRC is cited often at present in assessments of the appropriateness of policies and practices that impact children, it is a core current area of concern.
It is, therefore, disconcerting that teachers and leaders are encountering such myths and flawed assertions to an increasing extent in the period prior to incorporation of the UNCRC into Scots law.
Inaccurate and inappropriate interpretations of the UNCRC risk undermining the legitimate professional and employment rights of teachers and leaders and compromising the right of children and young people to benefit from high quality educational experiences in schools that are respectful, safe, inclusive and conducive to learning.
For example, our members are often told that the UNCRC means that schools cannot take effective and proven measures to ensure good discipline in schools, challenge poor behaviour, protect other children and adults from violent acts committed by children or, where appropriate, to exclude children. Teachers and leaders have been told that even the use of terms such as ‘sanctions’, ‘discipline’ or even ‘behaviour’ are ‘banned’ under the UNCRC.
None of this is correct, as the UN body responsible for interpreting the UNCRC, the Committee on the Rights of the Child, has made clear. Unfortunately, some policymakers and commentators too often act or talk as though it is.
It is deeply concerning that Scotland is moving, slowly but inevitably, towards incorporation of the UNCRC in circumstances where people in positions of significant power and influence demonstrate alarmingly muddled and disordered thinking about what the UNCRC means and does not mean.
While many have praised the Scottish Parliament and the Scottish Government for their commitment to incorporation, the absence of any official national guidance on how the Convention should be interpreted in practice is less praiseworthy. The approach appears to be that everyone will work all this out for themselves and that, ultimately, the courts will eventually decide through their judgements on the cases brought before them.
In a democracy, this just will not do. Having made the decision to incorporate, the parliament and the government must work with all those impacted by their decision to ensure that the UNCRC is interpreted and acted upon in ways that reflect the reality of the Convention rather than distorted understandings of it.
Darren Northcott is national official for education at the NASUWT teachers' union