By Juliet Harris, Director of Together

On Thursday 23^rd June, adults will make one of the most important decisions of their lives:  whether they think the UK should leave or remain as a member of the European Union.  Although this decision is being taken by adults, children and young people will be the ones whose lives are most affected by it.

It is of great frustration to many 16 and 17 year-olds that – although they have recently voted in the Scottish Parliament elections, are deemed old enough to join the army, get married, hold down a fulltime job and pay National Insurance (and even pilot a glider) – they are excluded from voting in the EU Referendum.  Earlier this year, the Scottish Youth Parliament conducted an extensive consultation with over 70,000 young people across Scotland for its ‘Lead the Way’ manifesto, revealing that 66% of respondents want to remain in the EU, 11% leave and 23% are unsure.  Not even a Scottish or UK general election will have such a profound effect on this country’s future and yet very many of these young people will have no say in the outcome of the EU Referendum.  There are over a million children and young people in Scotland who will have to live with the consequences of what adults decide.

As no-one under the age of 18 is eligible to vote in the EU Referendum, very little effort has been made by either VoteREMAIN or VoteLEAVE to engage children and young people in the debate or to explain what consequences the result may have on their lives.  Both campaigns have been dominated by discussions on the economy, trade, immigration and sovereignty rather than offering a vision of the kind of country we want to live in and the values we want to show to our children.

So how much of an impact does the EU have on children and young people’s rights?

It’s difficult to find any EU law or policy that does not affect children’s rights. The more obvious ones relate to immigration and asylum, protection from child trafficking and sexual exploitation.  Others include toy safety, online safety and advertising.  Of course, children’s rights are also more indirectly affected by EU laws relating to the environment – which ensure clean beaches for children to play on – through to employment regulations which provide for parental leave and working hour restrictions.

At a constitutional level, the EU has taken a lead in providing legislative protection of children’s rights far in advance of those offered in UK or Scots law.  All EU member states have ratified the UN Convention on the Rights of the Child (UNCRC), which gives it an important standing at a European level and helps to ensure the standards and principles of the UNCRC inform all policies and actions.

In the year 2000, the Charter of Fundamental Rights of the European Union enshrined some political, social, and economic rights for EU citizens and residents into EU law.  It protects a number of children’s rights which are not covered by the Council of Europe or the European Convention on Human Rights such as the right to receive free compulsory education (Article 14(2)), the prohibition of discrimination on the grounds of age (Article 21), a specific article for children which echoes – and enhances – the general principles of the UNCRC (Article 24).

In 2009, the Treaty on European Union was agreed which explicitly requires the EU to promote the protection of the rights of the child (Article 3).  This has led to adoption of the adoption of the directives on combating child sexual abuse, child sexual exploitation and child pornography, and on preventing and combating trafficking in human beings, including provisions addressing specific needs of child victims.  This Directive has been translated into legislative action in Scotland through the Human Trafficking and Exploitation Act (Scotland) 2015.

At a policy level, the Council of the European Union adopted the ‘EU Guidelines for the promotion and protection of the rights of the child’ in 2007.  This was followed by the Europe 2020 Strategy which sets out a vision for Europe where children have a better education, access to the services and to the resources they need to grow up and thrive.  This was articulated through the ‘EU Agenda for the Rights of the Child’ which commits EU institutions and Member States to promote, protect and fulfil the rights of children in all relevant EU policies.  This might sound like a high-brow ambition concocted in Brussels, far away from children’s everyday lives.  However, it was a result of widespread consultation with children, parents, governments, children’s commissioners, NGOs and other stakeholders across all Member States of the EU.  As well as presenting general principles to further the implementation of the UNCRC, the Agenda also focuses on a number of concrete actions in areas such as child-friendly justice, protecting children in vulnerable situations and tackling violence against children.

Such actions have brought tangible benefits to children and young people living in Scotland and more widely across the UK. For example:

The European Structural Funds 2007-2013 programme saw an estimated £350 million being distributed across Scotland through support for more than 800 projects.  This included projects to improve employment and training opportunities for young people, with a particular focus on those furthest away from the job market, projects to support children and young people with mental health problems, children affected by substance abuse problems and children involved in the juvenile justice system.  The 2014-2020 funding allocation has been complemented by the Commission’s adoption of a comprehensive ‘Investing in Children’ strategy to support Member States in addressing poverty and social exclusion through a range of early-years interventions.  Most recently, £60 million of European Structural and Investment Funds have been allocated to boost youth employment in southwest Scotland.

Aside from financial support from the EU, children’s rights are also seen to be progressed through the standards and regulations that are applied throughout member states, including setting stringent standards for all children’s toys made – and imported – into the EU through the CE mark.

The current migrant crisis across Europe has highlighted failings in EU protections for children.  Significant concerns have been raised about the number of migrant children who are ‘missing’ in Europe and vulnerable to trafficking and exploitation.  It is questionable as to the extent to which the best interests of children have been at the heart of EU negotiations to tackle the migrant crisis.  A leading child rights advocate has accused EU leaders of having a ‘crisis of empathy’ as they focus on ‘keeping people out, rather than protecting those in need’.

In the absence of any evidence on what protections would be offered to children’s rights in the event of the UK leaving the EU, it is only possible to reflect on what actions the UK Government has taken unilaterally at a European level.  It’s important to note that in the negotiations leading up to the Lisbon Treaty, the UK secured an ‘opt out’ (Protocol 15) that ensures that even if law, policies or practices of the UK Government are found to be inconsistent with the rights included in the Charter, the Court of Justice of the European Union (or UK Courts) have no power to make the UK government change them.  The ‘opt out’ is also clear that the Charter does not create justiciable economic or social rights unless these have been provided for in UK law.  Whilst the Charter offers stronger protections to other EU Member States, this ‘opt-out’ does limit the extent to which children’s rights are protected by the EU within the UK in the event of a Remain vote.

Very many of the protections offered by the EU for children’s rights could be directly incorporated into UK and Scots law in the event of a Leave vote.  Yet the priority given in referendum debates by both campaigns to the economy, trade and immigration does not inspire confidence that children and their rights are going to be at the top of either agenda after the referendum.  Furthermore, some of the protections offered by the EU depend upon pan-European cooperation – issues such as immigration, cross-border family law and international child protection would be much harder to protect effectively in the absence of wider international mechanisms.

So it is clear that the EU currently has an enormous impact on children and young people’s rights.  Yet it remains unclear as to what steps would be taken in the event of a Leave vote to address the significant gaps in protections that would result from leaving the European Union.  It also remains unclear as to what the Remain campaign’s vision would be for children’s rights in a future EU – would we continue to be the Member State that tries to water-down children’s rights protections at a legislative and policy level?

In the run up to the 23^rd June, I sincerely hope that both campaigns will start to articulate how a Leave or Remain vote will support the progression of children’s rights.  Europe has an Agenda for the Rights of the Child – surely both the Leave and Remain campaigns should have an agenda for children too?

Without a vote, children and young people will have no say about the UK’s future in or out of the EU.  Surely that makes it even more important that both campaigns begin to acknowledge the enormous impact that the European Union has on children and young people, and provide clear, evidence-based proposals as to how their rights will be further protected under either a Remain or Leave vote.  If we get it right for children and young people, the rest will fall into place.