By Diego Quiroz, Policy Officer, Scottish Human Rights Commission.
Children’s rights are human rights. That might seem like stating the obvious. However, it is still too often the case that laws, policies and practices do not recognise children as holders of rights themselves, rather than as extensions of their parents or carers. There is also too often a failure to respect children’s rights in reality.
As Scotland’s national human rights institution, the Scottish Human Rights Commission has a keen interest in making sure that the rights of children and young people are fully respected and realised. We work closely with Scotland’s Commissioner for Children and Young People and civil society organisations like Together to identify areas of concern, as well as progress.
In our role as a bridge between Scotland and the international human rights system, the Commission monitors and reports on the implementation of international human rights treaties.
The United Nations Convention on the Rights of the Child (CRC) will be well-known to many involved in advocating for children’s rights. But children’s rights are also important to consider in other human rights treaties.
This year the United Nations Human Rights Committee reviewed the UK’s implementation of the treaty that protects everyone’s civil and political rights – the International Covenant on Civil and Political Rights (ICCPR), ratified in 1976. The Committee’s Concluding Observations were published in July. Many of its recommendations reflect the concerns raised by the Commission and other children’s rights advocates.
Four particular areas are worth highlighting.
The Human Rights Committee called for an end to the use of ‘consensual’ non-statutory stop and search by the police. This mirrors the Commission’s own position and reflects the concerns expressed by us and many others about the impact of such practices on children. There are particular concerns about whether children can be expected to know all the relevant facts, have the confidence needed to refuse a search request or be able to consent without pressure.
The Committee also called for action to ensure that changes to legal aid do not undermine access to justice. This is welcome given concerns about changes to the legal aid system that can limit access to justice for children. From 31 January 2011, a solicitor assessing a child who applies for any civil or children’s legal assistance must take into account the financial circumstances of anyone who owes a duty of aliment (i.e. financial maintenance) to that child or young person. Previously, a child would be assessed in the same way as an adult, on the basis of their own personal disposable income and capital, providing greater protection for them as holders of rights in their own right.
The Commission welcomes the fact that the Human Rights Committee expressed concern that the age of criminal responsibility is set at 8 years of age in Scotland (and at 12 years for criminal prosecution). The Committee recommended that the minimum age of criminal responsibility be raised in accordance with international standards and called on the state to ensure the full implementation of international standards for juvenile justice.
Finally, the Commission completely shares the Human Rights Committee’s concerns that corporal punishment is still not fully outlawed in the home, in certain educational and alternative care facilities and in almost all British Crown Dependencies and Overseas Territories. The Committee called for practical steps to be taken, including through legislation where appropriate, to put an end to corporal punishment in the home and other settings.
So what happens next?
The UK and Scottish Governments will be expected to respond to the Committee’s robust recommendations. Although the ICCPR is not directly enforceable in Scotland’s laws (something the Commission would like to see change), the Scottish Government and Scottish Parliament have a duty under the Scotland Act to observe and implement international human rights obligations to which the UK is party. The Commission would therefore expect both institutions to fulfil this duty by responding positively and implementing the Human Rights Committee’s recommendations.
The Commission will continue to monitor and report on progress, working closely with children and young people’s organisations and our colleagues at Scotland’s Commissioner for Children and Young People. Scotland’s National Action Plan for Human Rights (SNAP) also provides a framework for collective action to advance the implementation of all human right obligations, including the ICCPR and the CRC.