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INSIDE TRACK: A workable constitution is far from child's play

ONE of the great gains of independence, we are told, would be the creation of a written constitution.

The proposed bill of rights would protect people from discrimination; the principles laid down would shape a future Scotland. The SNP have taken a certain amount of stick over the issue because some of the ideas they have floated for inclusion (free education and a ban on nuclear weapons, for example) look suspiciously like party policy rather than inalienable human rights.

Not all suggestions, though, fall into that category. The SNP's White Paper on independence says the European Convention on Human Rights - already embedded in Scots law - could be enshrined in a written constitution, adding that "independence gives Scotland the ability to consider whether other rights, such as those in the United Nations Convention on the Rights of the Child, should be enshrined".

Given such encouragement, it is perhaps curious to reflect that incorporating the UNCRC into Scots law has been under active consideration for months - and the Scottish Government has come down steadfastly against the idea. Indeed, SNP MSPs are expected to resist attempts to give the 1991 international agreement greater force in Scotland when Holyrood's education and culture committee votes today on a series of amendments to the Children and Young People Bill.

To date this sprawling piece of legislation has made the news for two reasons: measures to assign a named social worker or teacher to every child in the country to take responsibility for their welfare, and plans to expand free childcare. They are just part of a wide-ranging package of reforms, however, with the lofty ambition of "making Scotland the best place in the world to grow up", as children's minister Aileen Campbell put it.

As the Bill has progressed through Holyrood, there has been much discussion of using it to embed the UNCRC into Scots law. Among those to give evidence in favour were Tam Baillie, Scotland's Commissioner for Children and Young People, and Alan Miller, chairman of the Scottish Human Rights Commission. "A genuine commitment to children's rights requires the incorporation of the Convention into domestic law ," said Mr Baillie. The SHRC said the move was "long overdue".

As things stand, the Bill will place upon ministers a duty to keep UNCRC "under consideration" when making policy. The rather vague legal duty is weaker than in Wales, where ministers must "pay due regard" to its provisions. So much for the best country in the world to grow up in.

The Scottish Government has not been swayed. Children's minister Ms Campbell told MSPs she wanted to avoid the "legal wrangling and uncertainty" of the courts deciding cases brought under the Convention. She may be concerned that the courts could ban smacking or attempt to raise the age of criminal responsibility, two issues where Scotland may be at odds with UNCRC. If so, that's a pragmatic position to take. But how, as the White Paper claims, independence would allow greater consideration of UNCRC than we have already seen is altogether unclear.

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