UNCRC and UK Legislation
The United Nations Convention on the Rights of the Child is a set of minimum standards. It is a binding international treaty and by ratifying it the UK Government has committed itself to giving children the rights and protections contained in it.
All laws, policies and practices that relate to children must be compatible with the rights contained in the UNCRC and any processes involving children in courts or in tribunals must follow it. However the UNCRC has still not been directly incorporated into UK law and this leaves gaps in the protection of rights for children in the UK.
Children and young people cannot take a case to court under the UNCRC and although some of the rights from the UNCRC are included in the European Convention on Human Rights (ECHR), which has been incorporated into the Human Rights Act 1998, there are rights that are not included, for example: the right to an adequate standard of living, the right to play, the right to have imprisonment imposed only as a last resort, protection from all forms of violence.
Although not formally integrated into the ECHR or into UK domestic law, the UNCRC does influence the way in which ECHR rights are interpreted by the courts and this is also true of the domestic courts in England and Wales. One senior judge has gone so far as to say that this means that human rights law imposes enforceable obligations on a public body to have regard to the principles of the UNCRC (Munby J. in R (Howard League for Penal Reform) v Secretary of State for the Home Department and Department of Health ). The UNCRC, he said, could and should be consulted by the courts in England and Wales, in so far as it proclaims, reaffirms or elucidates the contents of human rights, in particular the nature and scope of Convention rights under the Human Rights Act 1998.
Children's Commissioner for Wales
The first reference to the Convention in any UK legislation was in the Regulations for the Children's Commissioner for Wales.The Regulations require the Children’s Commissioner to have regard to the UNCRC when exercising his or her functions.
Government of Wales Act 2006
In 2006 the Government of Wales Act created the possibility for the development of further legislation to support children's rights. Although it is clear that the Assembly is not empowered to incorporate the UNCRC in the law of Wales by any general legislative measure, this being beyond the scope of devolved powers, there are opportunities for the National Assembly for Wales to make laws providing for better implementation of children's rights in policy areas within the Assembly’s remit.
Rights of Children and Young people (Wales) measure
Under the Government of Wales Act 2006, the Wales UNCRC Monitoring Group working with partners in 2010 successfully lobbied for a legal duty to be imposed on Welsh Ministers to have due regard to the rights and obligations in the United Nations Convention on the Rights of the Child (UNCRC) and its Optional Protocols in exercising any of their functions. To view the proposed Measure together with the legislative timetable and the evidence submitted to the Legislation Committee during the scrutiny process click here
On January 18th 2011 this landmark piece of legislation was passed by the National Assembly for Wales with cross-party unanimous support.
As of the 1st May 2012 under the new Children's Rights Scheme, Ministers must show due regard to the rights in the UNCRC when making decisions about proposed new policies or legislation, or about reviewing or changing existing policies.
Read the written statement from 31st January 2013 on the Children's Scheme here
From the 1st May 2014, this will apply to all of Welsh Minister’s functions. It will also bring in the duty to promote knowledge and understanding of the UNCRC.
This ground breaking legislation is unique within the UK and goes a long way to incorporate the UNCRC within the limits of devolved powers in Wales.
Incorporating the UNCRC into UK legislation
The UNCRC Monitoring Group is a member of the Rights of the Child (ROCK) Coalition. This is a UK wide alliance of organisations working to ensure the UNCRC will become a part of UK legislation. For more details take a look here and keep an eye on our Policy and Law Reform page as it is updated.