The dualist relationship between UK and international law means that international obligations the UK signs up to, such as the United Nations Convention on the Rights of the Child [UNCRC], are not automatically incorporated into UK law. For incorporation to happen requires additional national legislation – legislation which the UN Committee on the Rights of the Child has pushed the UK to adopt in order to provide legislative protection for the rights of British children.
Legislatively speaking, the devolved powers have taken the lead in regard to direct incorporation. The Welsh Assembly, in 2011, passed primary legislation which would oblige every Welsh Minister to have ‘due regard’ to the requirements of the Convention and the optional protocols on the involvement of children in armed conflict and on the sale of children, child prostitution and child pornography. The measure came in into force in May 2012 in regards to formulating new policy and changing existing policy. From May 2014 it will apply to any ministerial function. The Scottish Government has drafted a Bill along similar lines, to have due regard for the UNCRC, which was introduced to the Scottish Parliament earlier this year. ‘The Bill’, the Scottish Government states, ‘will embed the rights of children and young people across the public sector in line with the UNCRC.’
Although the Welsh Assembly leads the UK towards implementing the Convention, the duty of ministers to have ‘due regard’ does not amount to full incorporation and is not, as the Scottish Government states, ‘in line with the UNCRC.’ As the Law Society of Scotland noted in response to the draft Children and Young Person Bill, ‘[t]he UK parliament has entered into an obligation to “respect and ensure” the rights set forth in the Convention to each child within their jurisdiction’, an obligation transferred to Scottish Ministers by the Scotland Act 1998, an obligation also held by Welsh Ministers. It was not that the Law Society of Scotland felt that Ministers would not uphold their duty to have ‘due regard’ for the rights enshrined in the convention, but instead raises ‘the question of whether in legislative terms an obligation to have “due regard” can be seen as anything other than a lesser obligation than a requirement to “respect and ensure”.’
In the House of Lords, Baroness Thornton, albeit debating the Equality Bill, attempted to clarify how the courts interpreted ‘due regard’.
‘The courts have made it clear that having due regard is more than having a cursory glance at a document before arriving at a preconceived conclusion. Due regard requires public authorities, in formulating a policy, to give equality considerations the weight which is proportionate in the circumstances, given the potential impact of the policy on equality. It is not a question of box-ticking; it requires the equality impact to be considered rigorously and with an open mind.’
The UNCRC itself stipulates that ‘[i]n all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.’ Indeed, many of the provisions of the UNCRC are subject to the ‘best interests of the child’ or other considerations such as national security, public safety, public order (ordre public), the protection of public health or morals, ‘the rights and freedoms of others’, the ‘respect of the rights or reputations of others’, rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her’ and ‘responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom.’
It can therefore be argued that the UNCRC has its own implicit ‘due regard’ clauses and legislating to ‘respect and ensure’ the UNCRC would bring, along with its provisions, the above conditions into UK law. This considered, along with the courts’ interpretation of ‘due regard’, the effective difference between ‘due regard’ and ‘respect and ensure’ may be slightly more nuanced than suggested by the Law Society of Scotland. For Wales, and in the near future, Scotland, it may not be a question of the obligational differences between ‘due regard’ and ‘respect and ensure’ but between ‘due regard’ for children’s rights and those rights being ‘a primary consideration’ depending on the particular UNCRC provision. Further, there is the question of what having ‘due regard’ for Article 2(1) of the UNCRC entails. Does having ‘due regard’ that ‘State Parties shall respect and ensure the rights set forth in the present Convention’ amount to effective incorporation?
Despite claims of enshrinement of the UNCRC in Welsh law from the Welsh Government and from non Government Organisations alike, there appears to be a need for caution before declaring effective implementation when the measure comes fully into force in 2014. As UNICEF has argued, the measure ‘does not create new enforceable rights for children under Welsh law’.
Benjamin F. Owen
UN Committee on the Rights of the Child Forty-ninth Session: Concluding Observations: United Kingdom of Great Britain and Northern Ireland [20 October 2008] CRC/C/GBR/CO/4 <http://www2.ohchr.org/english/bodies/crc/docs/AdvanceVersions/CRC.C.GBR.CO.4.pdf> accessed 01 November 2013
Rights of Children and Young Persons (Wales) Measure 2011
—— ‘About the Bill’  http://www.scotland.gov.uk <http://www.scotland.gov.uk/Topics/People/Young-People/legislation/proposed-bill> accessed 1 April 2013
UNICEF UK (Briefing) A duty to have due regard to the UN Convention on the Rights of the Child [1 May 2012] 1 <http://www.unicef.org.uk/Documents/Publications/UNICEF%20UK%20Briefing%20for%20AMs_Rights%20Measure_1%20May%202012.pdf> accessed 12 April 2013
—— ‘Scottish Government Rights of Children and Young People: The Law Society of Scotland’s Response’ http://www.lawscot.org.uk  2
<http://www.lawscot.org.uk/media/447548/fam_rights_children_young_people.pdf> accessed 16 March 2013
Hansard HL vol 717 col 1401 (2 Mar 2010)
UN Convention on the Rights of the Child [adopted 20 November 1989, entered into force 2 September 1990] GA Res 44/25
National Assembly of Wales (Scheme) National Assembly of Wales Children’s Rights Scheme [adopted 27 March 2012] 1 <http://wales.gov.uk/docs/phhs/publications/120418rightsofchildrenen.pdf> accessed 12 April 2013
—— ‘A Scotland for Children: A Consultation on the Children and Young People Bill’  http://www.scotland.gov.uk <http://www.scotland.gov.uk/Publications/2012/07/7181> accessed 1 April 2013