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Disability Commissioner (Scotland) Bill Consultation Response

Response to Consultation on the Disability Commissioner (Scotland) Bill

June 2024

Established by the Commissioner for Children and Young People (Scotland) Act 2003, the Commissioner is responsible for promoting and safeguarding the rights of all children and young people in Scotland, giving particular attention to the United Nations Convention on the Rights of the Child (UNCRC). The Commissioner has powers to review law, policy and practice and to take action to promote and protect rights. The Commissioner is fully independent of the Scottish Government.

8. What are your views on the main proposal of the Bill, to establish a Disability Commissioner for Scotland?

We think that other ways to achieve these aims should be considered.

There is a clear implementation gap in Scotland between law, policy and practice. This creates a lot of dissatisfaction. The creation of a specific body or person to champion the needs of a particular group, such as disabled people, appears to be a reaction to ineffective legal and policy implementation, and barriers to access to justice.

Whilst we recognise that the Commissioner model can be very effective, there is currently a risk of creating an increasingly fragmented, confusing and ineffective infrastructure which could inadvertently create more barriers to justice. The most meaningful impact for rights holders lies in changing practice, budget processes and implementation.

We are fully in agreement that more resources must be made available for the benefit of disabled people. There are many ways in which their needs could be better championed with decision-makers that would not require the establishment of a new independent officeholder supported by the Scottish Parliament Corporate Body. Parliament itself has an important role in performing this function.

Disabled people, including disabled children and young people, still face many difficulties and discrimination in their day-to-day life. We strongly believe that much more must be done to protect, promote and fulfil their rights and deliver public services which meet their needs.

We have recently provided the Finance and Public Administration Committee with our views on Scotland’s Commissioner Landscape.[1]

The remit of this new Commissioner (if established as an independent officeholder) has the potential to include overlapping functions with the office of the Children and Young People’s Commissioner Scotland, leading to duplication of work, and exacerbating an already complicated and fragmented landscape which is hard for both rights holders and duty bearers to navigate. There are also significant financial implications for both new and existing Commission(er)s.

New offices may be set up from the outset with too little resource to meet public expectations, fulfil their statutory remit or successfully work with existing offices. The proposal for the Disability Commissioner cites the high profile and impact of the Children and Young People’s Commissioner Scotland as a model they would seek to replicate. It is our view that this would not be possible with the resources which have been requested to support this proposal.

The financial memorandum for this Bill suggests the small number of staff would primarily be policy specialists. This suggests a focus on law and policy instead of the implementation gap that appears to drive much of the frustration expressed by disabled people. It may also significantly underestimate what is required to run an office of this type in line with all the existing statutory obligations on parliamentary office holders. Furthermore, it is unclear how the participation of disabled people of all ages and needs would be supported. The financial memorandum references the Commissioners’ function to ‘engage with, consult with and listen to disabled people’. It describes doing this via research and various promotional activities.

“While some of this will be covered by website costs as referred to above, the Commissioner may also, for example produce and distribute leaflets, produce promotional videos, pay for promotional billboards or run television advertising campaigns.”

Rights holders will expect to be supported to meaningfully engage with and participate in all of the work of the Disability Commissioner. This involves specialist skills, and staff with the capacity to offer support and engagement in the wide range of activities and ways required. Participation is a core focus for the Children and Young People’s Commissioner Scotland, we consider that this is what enables our office to have the profile and impact it does.

Furthermore, there is no specialist staff resource allocated to work on the proposed Disability Commissioners investigation powers. From our experience in the operation of our investigation function, staff with specialist skills are required to fulfil this remit and investigations can be complex and resource intensive.

We recommend particular attention and scrutiny to avoid unnecessary overlap and duplication in functions between existing officeholders and the proposed Disability Commissioner. Our remit covers work with disabled children and young people; this has been and will continue to be important for us throughout the work of the organisation. Prioritisation of limited resources means that our office cannot always dedicate as much focus as we may want to on specific groups of children. The same challenge would exist for the Disability Commissioner given their wide-remit which includes adults.

One of the potential risks with the creation of new officeholders, including the creation of a Disability Commissioner, is that increasingly scarce public finances are diverted into establishing new bodies, rather than improving the effectiveness of existing bodies by adequately resourcing their powers. In addition, the new bodies may actively restrict the ability of existing office holders to fulfil their mandate.

We have a statutory duty to avoid duplicating the work of others in relation to our investigation powers. To illustrate the potential unintended consequences of duplication and overlap, we highlight the potential impact on our investigation powers. These are strong, but they specifically exclude situations where we would duplicate the investigatory function of another body in Scotland. As an example, this required us to consider carefully the scope of our investigation into restraint and seclusion (an issue which disproportionately affects disabled children).

Our office has the power to carry out ‘general investigations’ and ‘individual investigations’ into whether a service provider has regard to the rights, interests and views of children and young people in making decisions or taking actions that affect those children and young people (or a specific child or young person for individual investigations).[2] However, our office is prevented from exercising this power where to do so would duplicate the investigatory function of another body in Scotland.[3]

It is worth noting that, as a consequence of this provision, the individual investigation power is narrower than the general power as there are more bodies able to investigate individual complaints or issues. It can be complex at present to assess whether an individual case falls within the scope of our investigation power. Our office is required to report to Parliament following the conclusion of a general investigation, including any recommendations arising from any investigation. Reporting to the Parliament on an individual investigation is discretionary due to the need to consider the privacy rights of the child concerned.[4]

While our powers to conduct an investigation and require the provision of evidence are strong, the office lacks an enforcement power. We understand that when the 2003 Act was passed, it was anticipated that the Parliament itself would be the enforcement mechanism. However, experience has led us to conclude that a power to make binding recommendations could be an important addition to the office’s ability to hold public bodies accountable, particularly now the UNCRC (Incorporation) (Scotland) Act 2024 has been passed.

We intend, under our Strategic Plan 2024-28[5], to have a priority focus on education – as directed by children and young people, following extensive consultation. Within this, we will be looking at the experiences of disabled children and children whose support needs are not being met. Remits for new independent officeholders (and the allocation of resources) should ensure that they will not restrict our ability to undertake work, or there is a significant risk of undermining the ability of existing officeholders to fulfil their commitments.

Children’s human rights are indivisible and interdependent. An intersectional approach to upholding children’s rights which takes account of all relevant identities enables more effective rights protection, rather than a system which artificially separates the different issues. Where bodies with restricted mandates are created, they may, albeit unintentionally, be established with a lack of power (or specialist knowledge) to address issues with intersectional understanding. Subdividing a person’s characteristics across the mandates of numerous new public bodies will require bodies, rights holders and duty bearers to work together in ways which may not be possible, effective or efficient. Existing bodies are unlikely to receive any additional resources to enable them to work in this way.

The resources of existing offices will come under further pressure; work to avoid duplication and develop effective collaboration processes is resource intensive for all involved. Organisational planning and consultation processes would increase, rather than substantive advocacy work for the benefit of rights holders.

We have concerns that this could also make the landscape more complex for children and young people – perhaps leaving them more confused about who to turn to regarding a particular issue.

15. Do you think there might be any unintended consequences as a result of the Bill’s proposals?

Children don’t have the same power (or voting rights) as adults, their rights and interests are often marginalised in favour of adults. Children and young people find it difficult to engage in an adult centred body. The involvement of children and young people is a requirement of our legislation – we have seen that their voices are often drowned out in adult centred organisations. Research shows that the involvement of children in organisational structures is specified almost exclusively in the mandates of stand-alone, child-focussed institutions such as ours.[6] We would highlight that within the creation of a Disability Commissioner, there is a risk that disabled children and young people would not have the same influence in the organisation as disabled adults, and their views and priorities may be less well represented. This concern is also reinforced by our view that the financial projection for the remit of the proposed Disability Commissioner appears under-resourced, with no focus on specialist participation capacity.

Further consideration should be given to better funding of existing services or enhancing the resources of existing human rights organisations[7] – instead of establishing a new Commissioner.

[1] Scotland’s Commissioner Landscape: A strategic approach – The Children and Young People’s Commissioner Scotland (

[2] Section 7, Commissioner for Children and Young People (Scotland) Act 2003

[3] Section 7(2A), 2003 Act

[4] Section 11, 2003 Act

[5] CYPCS, 2024. Our Plan 2024-28

[6] Unicef – Championing Children’s Rights A global study of independent human rights institutions for children – summary report- championing2_eng.pdf (

[7] crossroads_what-next-for-human-rights-protection-in-scotland-shrc-june-2023.pdf (

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