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Rights questions and answers

Q:
What has our office done around assessments in 2021?
A:

Since the cancellation of 2021’s exams was announced, our office has raised concerns around the appeals process.

When the SQA consulted around the 2021 appeals process, we raised concerns that their consultation wasn’t accessible to young people and didn’t encourage them to participate. Our own response to the consultation raised  human rights concerns with the process.

In April we highlighted that the SQA’s Alternative Certification Model needed to take exceptional circumstances into account, just as they are in years where there isn’t a global pandemic. We also published an FAQ about how to ask for extra support at school.

And currently we’re continuing to highlight the need for these critical changes, sharing the concerns of young people and pointing to where Scottish Government can step in if needed.

Q:
How can Children’s Commissioners best protect children’s human rights?
A:

In their General Comment 2, the UN Committee on the Rights of the Child explains how people like Children and Young People’s Commissioners can best protect children’s human rights:

  • help children, young people and adults understand children’s human rights.
  • Make sure children and young people know how to contact them.
  • Listen to all children and young people’s views and make sure others do to.
  • Involve children and young people in their day to day work.
  • Work closely with children and young people’s organisations.
  • Be able to investigate where children’s human rights are not being respected.
  • Report back to the United Nations Committee on the Rights of the Child on how their country’s government is respecting children’s human rights.

The Committee also says that like other national human rights institutions, Commissioners should be independent of government.

Q:
How does the law protect the Commissioner’s independence?
A:

The Commissioner for Children and Young People (Scotland) Act makes it so the Commissioner is independent of government:

  • the Commissioner is nominated by the whole Scottish Parliament, and appointed by the Queen,
  • the Commissioner can’t be removed from their post without a two-thirds majority vote in the Scottish Parliament.

The Commissioner also lays reports to the Scottish Parliament, but no MSPs direct or control the work the Commissioner does.

Q:
What does the law say the Commissioner’s functions are?
A:

Scots law sets out the Commissioner’s functions— the things that he and his office must do.

Protecting and promoting rights

The Commissioner’s main function is to promote and protect the rights of children and young people in Scotland. That includes:

  • everyone in Scotland under 18, and
  • everyone in Scotland under 21 who’s care experienced.

Protecting and promoting rights must involve:

Promoting awareness and understanding

The Commissioner has to tell people in Scotland about the rights children and young people have and help them understand what they mean in practice.

Reviewing law, policy and practice

The Commissioner has to look at what powerful people in Scotland do and the laws they pass, and challenge them when they don’t respect children and young people’s rights.

Promoting best practice

The Commissioner has to tell people who work with and for children and young people how to get better at respecting human rights.

Research

The Commissioner should research issues around children and young people’s human rights and get others to carry out research around this. He should tell people what the research finds.

Investigation

The law gives the Commissioner a special power to investigate some issues affecting children’s human rights. There are limits on when this power of investigation can be used.

Reporting to Parliament

The Commissioner has to report to the Scottish Parliament so they know what he’s doing in his job.

What does the law say the Commissioner has to do when carrying out their functions?

Have regard to the UNCRC

The Commissioner must have regard to the UN Convention on the Rights of the Child, especially around:

Equal opportunities

The Commissioner must encourage equal opportunities and the observance of equal opportunity requirements.

Involving children and young people

The Commissioner must encourage children and young people to be involved in his work. Children and young people should know:

  • what the Commissioner does,
  • how they can talk to the Commissioner, and
  • how the Commissioner will respond to them.

The Commissioner must consult children and young people on the work they plan to do, and must consult organisations who work with children and young people. When they do this, they must pay special attention to groups of children and young people who have no other good way to make their views known.

The Commissioner also has to have a strategy around involving children and young people.

Q:
What laws give the Commissioner power?
A:

The Commissioner’s powers are set out in the Commissioner for Children and Young People (Scotland) Act 2003, as modified by the Children and Young People (Scotland) Act 2014.

Before the Children and Young People (Scotland) Act came into force, the Commissioner could only use their power of investigation to investigate cases involving the human rights of groups of children and young people. The Act changed this to allow the Commissioner to investigate cases affecting the human rights of an individual child or young person.

Q:
What’s the history of the Commissioner’s office?
A:

Scotland’s first Children and Young People’s Commissioner began work in 2004 after many organisations told the Scottish Government that children and young people should have a new voice to stand up for your rights.

The first Commissioner was called Kathleen Marshall. She spoke and listened to many children and young people, and they helped her decide what the best way was to promote and protect their rights. During the five years she was Commissioner, Kathleen and her team worked hard and accomplished a lot for the children and young people of Scotland.

In 2008, Kathleen’s term as Commissioner ended. The second Commissioner – Tam Baillie – started work in 2009. Tam spent his eight years as Commissioner listening to children and young people and acting on what they said, before he was succeeded by current Commissioner Bruce Adamson in May 2017.

Q:
Who checks the Commissioner’s accounts?
A:

Because the Commissioner is funded by public money, it’s important that their accounts are checked over – or audited – and that as a member of the public you have access to these audited accounts.

Like all public bodies, the Commissioner publishes an annual statement of expenditure each year as well as accounts. This says how much money’s been spent on:

  • public relations
  • overseas travel
  • hospitality and entertainment
  • external consultancy.

Our accounts are checked by:

The Auditor General for Scotland

The Commissioner must send their accounts to this person every year. Their office will inspect the accounts.

The Scottish Parliament

The Commissioner receives their approved budget on a monthly basis from the SPCB.

The Advisory Audit Board

The Advisory Audit Board (AAB) advise the Commissioner on, and review, the system of internal control and the arrangements in place for corporate governance, managing risk and auditing financial and management performance. The AAB will provide assurance through a process of constructive challenge. 

Q:
Who’s responsible for the funding the Commissioner gets?
A:

The law that sets out the Commissioner’s role says that the Commissioner or a member of their staff has to be responsible for:

  • signing their accounts
  • making sure their finances are regular and correct
  • making sure resources are used economically, efficiently and effectively.

The Commissioner acts in the role of accountable officer, and in this role they are answerable to the Scottish Parliament.

This means that – while the Commissioner is independent – the law does say they should spend the money they get from the public in a reasonable way, and there are systems in place to make sure this happens in practice.

Q:
How is the Commissioner funded?
A:

The Commissioner is funded through public money, and ultimately through the people of Scotland.

But isn’t the Commissioner independent? How can that be if they get funding in this way?

The Commissioner’s funding doesn’t come through the Scottish Government, but from the Scottish Parliament.

The Commissioner requires Parliamentary approval of their budget each year via the Scottish Parliamentary Corporate Body (SPCB).

The Commissioner’s financial year runs from 1 April to 31 March. Each summer, the SPCB writes to the Commissioner seeking a budget for the next financial year and an estimated budget for the year or years after that.

The SPCB looks at the Commissioner’s budget submission and may request oral or written evidence of the bid, agreeing changes if necessary before formal SPCB approval. The Commissioner’s budget submission forms part of the SPCB’s overall budget submission that must be approved by the Scottish Parliament’s Finance Committee.

Q:
How can I contact the Commissioner’s office?
A:

If you are a child or a young person and would like advice and information from the Commissioner’s office – or to tell us something you’re worried about – you can contact Linda, Nick or Maria by:

  • using the form at the bottom of our website
  • emailing us at inbox@cypcs.org.uk
  • texting 0770 233 5720 (Texts will be charged at your standard network rate)
  • calling our children and young people’s freephone on 0800 019 1179.

We can also give advice and information about children’s rights issues to adults—please contact us on inbox@cypcs.org.uk or through using our contact form.

Q:
When will the Commissioner choose to investigate an issue?
A:

The Commissioner will only investigate if they think they have the power to do so, based on a clear set of criteria to make sure they are using their powers effectively.

Our office may also be able to address issues in other ways including:

• carrying out work at policy level,
• undertaking research, or
• through strategic litigation.

Q:
When can’t the Commissioner investigate an issue?
A:

The law says that the Commissioner can’t investigate a case if:

  • it relates to matters reserved to the UK Government,
  • it concerns the decision-making of a court or tribunal in a particular case, or
  • it concerns a case currently before a court or tribunal.

The Commissioner also can’t investigate an issue if another body in Scotland is able to investigate it. Some other organisations who can investigate issues are:

Q:
What does the Commissioner have the power to investigate?
A:

The law that lays out the Commissioner’s powers says they can investigate enquiries around if service providers have failed to:

  • uphold the rights, interests and views of individual children and young people when taking actions or making decisions that affect them, or
  • uphold the rights, interests and views of a group of children and young people when taking actions or making decisions that affect them.

There are limits to this power of investigation.

Q:
What is the Commissioner’s power of investigation?
A:

The Commissioner has the legal power to investigate in some cases where he thinks rights promises to children and young people aren’t being kept in Scotland. It’s a way that our office can hold people in power to account and demand they make changes when they’re failing to follow the law around children’s human rights.

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