Scottish Government Consultation

United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024: Statutory Guidance on Part 2 and 3 (section 18)

This consultation was submitted via the Scottish Government’s Consultation Hub.

Part 2 Guidance

The following consultation questions 1-14, relate to the draft statutory guidance on Part 2 of the UNCRC Act. This is particularly relevant to public authorities.

1.     I have read the draft statutory guidance on Part 2 of the UNCRC Act

☒Yes

☐No

2.        Section 3,  ’Background and introduction to the UNCRC Act’, provides sufficient information on the UNCRC and the background to incorporation.

☐Strongly agree

☒Agree

☐Neither agree nor disagree

☐Disagree

☐Strongly disagree

We note that the guidance variously refers to our office by either our full or legal names, as CYPCS or as “the Commissioner”. If it is not possible to use our full name, we would prefer “CYPCS” be used rather than “the Commissioner” to avoid confusion with other commissioners. Likewise, references to the UNCRC should be specific, as use of “the Convention” may result in confusion with other conventions such as the ECHR.

The guidance should make clearer the role that Children’s Rights Impact Assessments can play in ensuring that public authorities act compatibly with the UNCRC. Whilst CRIA are not a statutory requirement under the act for public authorities (with the exception of the Scottish Government) they nonetheless represent a well-established and internationally recognised means of demonstrating that due regard has been taken of children’s rights and that decisions are compatible with the UNCRC, in a similar way that Equality Impact Assessments demonstrate compliance with the Equality Act 2010.

Our view is that the potential value of CRIA should be highlighted throughout the guidance and the first opportunities to do so are in paragraph 2 of page 4 and paragraph 3 of page 5.

Section 3 of the draft guidance provides a broad overview of the development of human rights law over the latter half of the 20th century. Within this, it would be useful to differentiate between non-binding declarations, including the Universal Declaration on Human Rights (UDHR) and binding international treaties such as the UNCRC. It is also important to highlight the two binding International Covenants – on Civil and Political Rights (IICPR) and Economic Social and Cultural Rights (ICESCR) as important steps towards the development of the UNCRC. By contrast we feel that mention of the Charter of the United Nations is probably superfluous and could cause confusion as it is not a human rights instrument per se and its human rights elements are elaborated on in the UDHR.

We welcome the use of UNCRC Article 2 discrimination language on page 7 and feel it would be useful to indicate the source is Article 2, to explain the variance with Equality Act protected characteristics.

The understanding of Article 12 was elaborated on by the UN Committee on the Rights of the Child and is better described as a right to *participate* rather than to be heard (or as the voice of the child). We would prefer that it be referred to as such throughout the UNCRC guidance.

3.        Section 3.4, ‘Meaning of UNCRC requirements’, clearly articulates what is meant by this in relation to the section 6 duty.

☐Strongly agree

☒Agree

☐Neither agree nor disagree

☐Disagree

☐Strongly disagree

It needs to be clear that UNCRC requirements includes the contents of the two Optional Protocols ratified by the UK. The Optional Protocols have the same status as the substantive rights within the UNCRC itself. Reference should also be made to the interpretative sources outlined in section 4 of the Act, which may assist in understanding the UNCRC, in particular the importance of General Comments.

We note that on page 11 the guidance states “In Scotland, civil and political rights are protected by the Human Rights Act 1998”. This is not entirely accurate as the European Convention on Human Rights (ECHR) explicitly includes some economic and social rights (not least the right to an education in Article 2 of Protocol 1) and the European Court on Human Rights has interpreted other articles as extending positive obligations in respect of economic, social and cultural rights.

We welcome the clarity that independent and third sector organisations may meet the definition of ‘public authority’ but we are not sure that it is clear from this guidance the circumstances where they do. We would recommend additional engagement with third sector organisations to ensure that this section of the guidance meets their needs.

4.        Section 4.2, ‘Remedies for unlawful acts (sections 7 to 10)’ is useful.

☐Strongly agree

☒Agree

☐Neither agree nor disagree

☐Disagree

☐Strongly disagree

We feel that this section would be better placed after the sections on definition of public authority and the nature of duties (which is the order they appear in the Act).

It needs to be clear that the compatibility duty applies both to acts and to omissions or failures to act (s6(1).

In terms of SPSO’s complaints process, it must be clear that there is no requirement for a child to ‘exhaust’ this route before accessing the courts. In some cases, it would not be in the child’s interest to first take a complaint through the sometimes length complaints process.

The guidance makes reference to powers our own office and SHRC have to raise or intervene in legal proceedings, but should also note that it enables others with ‘sufficient interest’, including third sector organisations, to raise proceedings on behalf of children.

We support other comments on this section made by Together Scotland in their response.

5.        Section 4.3.2 ‘Definition of a public authority’ is clear.

☐Strongly agree

☐Agree

☒Neither agree nor disagree

☐Disagree

☐Strongly disagree

Our view is that that this section is overly complex, although we note some of this complexity is unavoidable given the changes that were required to be made to the Act. The entirety of section 4.3 would benefit from editing to increase clarity, reduce repetition and ensure coherence. We feel that the definition of public authority could be explained in a way that is clearer, particularly for third-sector organisations which undertake a mix of public and non-public functions.

The differences between the definition in this Act and in the Human Rights Act 1998 (HRA) needs to be clearer. Whilst the HRA definition was the starting point during the development of the legislation, it is not appropriate to use them as a starting point to understanding the definition used by this Act. The differences need to be much clearer. We would also suggest referring to the ECHR using those initials, rather than as “the Convention”, to avoid confusion with the UNCRC.

Our recommendation is that the Scottish Government undertake further consultation with third sector organisations regarding this section, to ensure that it meets their needs, and that specific examples are added to this section to improve clarity.

6.        Section 4.3.1 ‘Definition of functions of a public nature’ is clear.

☐Strongly agree

☐Agree

☐Neither agree nor disagree

☒Disagree

☐Strongly disagree

Insufficient attention is given to differentiating between the HRA definition of a public function and the definition used in this Act. We have concerns about the way this section has been drafted and recommend further work, particularly with third sector organisations, to ensure it meets their needs as well as those of statutory authorities. In particular, it is important to clarify the situation with regard to private or third sector organisations providing non-public funded services.

7.        Section 4.4, ‘Explanation of the duties on public authorities in Part 2, section 6’ clearly explains the nature of the section 6 duty on public authorities, including clearly articulating that the section 6 duty applies only when a public authority is carrying out devolved functions conferred under Acts of the Scottish Parliament or common law powers.

☐Strongly agree

☒Agree

☐Neither agree nor disagree

☐Disagree

☐Strongly disagree

We welcome the repeated commitment to a maximalist approach and the expectation that public authorities should act compatibly in all their functions. The UNCRC was ratified by the UK government over 30 years ago and public authorities are therefore under an existing duty, in international law, to act compatibly. Unfortunately, the final sentence in the section on Legislative Competence – 2(a) would seem to contradict this and should be amended.

We note that the section Legislation – 2b is not entirely clear regarding Acts of the Scottish Parliament amending earlier Acts of the Scottish Parliament. These are in scope of the Act and this sentence should be amended to reflect this.

8.        Annexes A.1 – A.5, ‘Clarification of conceptual aspects of the UNCRC’ are clear.

☐Strongly agree

☐Agree

☒Neither agree nor disagree

☐Disagree

☐Strongly disagree

9.        Annexes B.1 – B.4 ‘Sources to guide interpretation’ are useful.

☐Strongly agree

☐Agree

☒Neither agree nor disagree

☐Disagree

☐Strongly disagree

10.      Annex C, ‘Framework for Reviewing Compatibility (s.6 duty)’ is presented in an accessible manner, e.g. the content, style, and length make this a user-friendly and practical resource.

☐Strongly agree

☐Agree

☒Neither agree nor disagree

☐Disagree

☐Strongly disagree

This narrative section covers Annexes A, B and C

Annex A

In Annex A, section A.1 – it would be more accurate to describe the general principles of the UNCRC as “underpinning” the rest of the articles, rather than “assist in interpreting”.

In Annex A – Article 2.  The non-discrimination obligation in Article 2 is not a requirement to “treat all children equally”, as has been made clear by the Committee on the Rights of the Child. It is about equal access to rights.

The term “protected characteristic” is used here, there is a risk this is understood as having the specific meaning it has in the Equality Act. This paragraph should be amended to avoid confusion. The non-discrimination rights in Article 2 are much broader than those in the Equality Act, extending to “any other status”. Indeed it may be useful to include examples of “any other status” to demonstrate this breadth.

Likewise, the framing of direct discrimination and indirect discrimination is drawn from the Equality Act. The UNCRC places a duty on states to “respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind”. Although it recognises both direct and indirect discrimination, the CRC generally does not significantly differentiate between them. Removing the Equality Act language from this section would simplify it.

In Annex A – Article 6: Right to life, survival and development. We are not sure why General Comment 21 on Children in Street Situations has been used as a source for this section. There is a risk of this being interpreted narrowly as a result. The Right to Life is addressed by a number of General Comments and this should be reflected in the Statutory Guidance.

Annex A – Article 12: Views of the Child. This should say “Right to participation” or simply “Participation” to reflect the approach taken in General Comment 12. It also should be made clear that there is a presumption that all children are capable of providing their views. It would be useful to reference models of participation, for example of the Lundy Model to emphasise that the right to participate should be seen by public authorities as a process which includes how views are sought and also what influence they have.

We would recommend a thorough edit of sections A.3, A.4 and A.5. They are all overly complex and open to misinterpretation. A.3 and A.4 seem to merge together in a way which could cause confusion.

The concept of maximum available resources recognises the challenges that developing economies faced at the time the UNCRC was written. In Scotland, it would be applied in the context of the UK as an advanced economy – in which case it must be seen as a high bar. Likewise, progressive realisation should not be understood as permitting a staged implementation of the UNCRC in Scotland, given that the UK government ratified the UNCRC over 30 years ago.

We found it difficult to follow the two sections on evolving capacity, which repeat each other. We recommend these are considered again with a view to merging and condensing them. Reference should be made to both General Comment 7 on Early Childhood and General Comment 20 on the rights of children in adolescence.

Annex B

In Annex B section B.1 we note that the Committee on the Rights of the Child have moved to a reporting scheduled of approximately every 8 years.

In Annex B section B.2, we are not sure why these particular General Comments have been selected but are particularly concerned by the inclusion of General Comment 10, which was withdraw in 2019 when it was superseded by General Comment 24.  It would also be useful to draw attention of General Comment 20 on the rights of the child during adolescence, particularly in the context of evolving capacity.

11.      I clearly understand how to use the Compatibility Review Framework.

☐Strongly agree

☐Agree

☐Neither agree nor disagree

☒Disagree

☐Strongly disagree

Although this framework differs from the Scottish Government’s CRWIA, it in many ways resembles a CRIA. We are concerned that public authorities may not have sufficient clarity on the scope and purpose of the Compatibility Review Framework. Despite its non-statutory nature, CRIA would therefore be our recommendation for this purpose.

If the intention is that the two frameworks remain separate, it should be far clearer when it is appropriate to use each.

12.      Overall, the guidance is presented in an accessible manner, e.g. the content, style, and length make this a user-friendly and practical resource.

☐Strongly agree

☐Agree

☒Neither agree nor disagree

☐Disagree

☐Strongly disagree

13.      Overall, the guidance supports an improved understanding and ability to fulfil the duties under Part 2 of the Act.

☐Strongly agree

☐Agree

☒Neither agree nor disagree

☐Disagree

☐Strongly disagree

14.      Are there any areas where you think the Part 2 guidance could be improved? Please cite specific parts of the guidance if relevant.

We note that some of the numbering in Annex D is inaccurate. This section also uses headings for each right i.e. Article 12 Respect for the Views of the Child, which we would describe as more accurately being child’s right to participate. Whilst it is not unusual for these to be used in policy documents, they do not appear in the UNCRC itself, nor in Schedule 1 of the UNCRC Incorporation Act. Given this is statutory guidance, we recommend these are removed and the text of the UNCRC, as enacted in Schedule 1, is used.

Part 3 Guidance

The following consultation questions 14-20, relate to the draft statutory guidance on Part 3 (section 18) of the UNCRC Act. This is particularly relevant to public authorities listed in section 19 of the Act.

15.      I have read the draft statutory guidance on Part 3 (section 18) of the UNCRC Act

☒Yes

☐No

16.      Section 4, ‘Reporting duties of listed authorities’  is sufficiently clear on the reporting requirements under Part 3 of the Act.

☐Strongly agree

☒Agree

☐Neither agree nor disagree

☐Disagree

☐Strongly disagree

This guidance will help public authorities fulfil their reporting duty and we particularly welcome that it is clear that they should report not only on what they have achieved in the past but their plans for the future.

In terms of baseline information, we welcome the importance given to disaggregated data. We have been concerned that, at times, public authorities may restrict their gathering of disaggregated data due to a misunderstanding of the restrictions of the GDPR and would welcome further clarity on this, either in this guidance or elsewhere. Lack of disaggregated data was highlighted by the Committee on the Rights of the Child in their Concluding Observations to the UK in 2023 and they recommended “both qualitative and quantitative indicators to encompass all areas of the Convention and ensure that the data are disaggregated by age, sex, disability, geographical location, ethnic origin, nationality and socioeconomic background”. Our view is that this should be supplemented by additional categories, including but not limited to the Equality Act protected characteristics, for example care experience, young carers and children in armed forces families.

In section 4.3 we would welcome stronger language encouraging the participation of children and young people in the development of reports. While this is not explicitly required by the Act, fulfilling children’s right to participate when decisions are made about them extends, in our view, to decisions about how public authorities report when developing both their main and their child friendly report.

In section 4.4 the draft guidance suggests that the wellbeing indicators could be used as part of preparation for reporting.  We have concerns about the appropriateness of this response, which we will elaborate on in our answer to Question 19 below. As the draft guidance itself says, the SHANARRI indicators do not satisfy all incorporated UNCRC articles.

In the section on Easy Read and Inclusive Communication, Article 19 of the UDHR is cited. The UDHR is not a binding international treating and in any case this right is included in Article 13 and 42 of the UNCRC.

We support the suggested approach of combined reporting suggested on page 11, however it must be made clear that a combined report must meet the requirements of section 18(1)(a) and (b) (as noted in the final paragraph on page 11). 

17.      Section 5, ‘Publication requirements of reports’ is sufficiently clear on the publication requirements under Part 3 of the Act.

☐Strongly agree

☒Agree

☐Neither agree nor disagree

☐Disagree

☐Strongly disagree

We welcome the broad approach suggested for publication – these reports should be meaningful for and accessible to children and young people. We note that there is a requirement for a child-friendly version of the report which should address some of the issues in this suggestion. Sections 4 and 5 could, therefore, be revised to ensure there is not unintended confusion. We note that there is no mention of the possibility of making the report available in BSL and feel this would be a useful addition.

18.      Section 6, ‘Policy intention of children’s rights reports under section 18 of the Act’,  clearly explains how the reporting process contributes to progressing children’s rights.

☐Strongly agree

☒Agree

☐Neither agree nor disagree

☐Disagree

☐Strongly disagree

19.      Annexes B.1 – B.4 Frameworks for children’s rights reporting are helpful.

☐Strongly agree

☐Agree

☐Neither agree nor disagree

☒Disagree

☐Strongly disagree

Frameworks for Children’s Rights Reporting

We do not agree that the “Wellbeing approach: using the GIRFEC wellbeing indicators” is an appropriate framework for Children’s Rights reporting. In particular, we disagree that the SHANARRI indicators, which were developed to assess individual wellbeing, would be useful in analysing the ways in which a public authority does or does not meet the duties contained within the UNCRC. It would mean attempting to put an individual lens on what should be a holistic strategy.

We are particularly concerned that the diagram on page 28 continues to be used in an attempt to link the rights contained within the UNCRC to the SHANARRI indicators and Four Capacities. This is an artificial construct and at odds with an understanding of rights as universal, indivisible, interrelated, interdependent and mutually reinforcing. And notably, both SHANARRI and the Four Capacities refer to children as having responsibilities but not rights. This undermines the important principle that rights are inalienable and available to all children.

The wellbeing approach is simply inappropriate for reporting on fulfilment of children’s rights.

Cluster model

We support this internationally recognised model which closely links to individual articles of the UNCRC whilst providing broad themes to organise the report. However, we feel some of the example statements may stray too far from the meaning of each Article. In particular, the reference to Article 6 on page 25 is vague and, as the only mention of Article 6, does not reference the right to life. The example for Article 5 on page 26 seems to lack a full understand of the concept of evolving capacities, which provide for children to be supported to make their own decisions, in line with their evolving capacities. The Article 9 example on the same page includes aspects of Article 12, already covered, so might be better phrased as “Children who are looked after have access to the services they need and are supported to maintain contact with their family” which incorporates Article 9(3). 

The second example for Article 18 on page 26 is, in fact, an example for Article 20 and the one marked as Article 6 and 23 should read 2 and 23.

Once again, Article 12 is expressed in terms of “voice of the child”. This not only fails to reflect the full understanding of Article 12 outlined in General Comment 12, but also the experiences of children who use BSL, or who are non-speaking or non-verbal.

20       Annex C, ‘Scottish Government use of children’s right’s reports’,is clear.

☐Strongly agree

☒Agree

☐Neither agree nor disagree

☐Disagree

☐Strongly disagree

21.      The guidance is presented in an accessible manner, e.g. the style, length and content are useful in aiding implementation of duties in respect of the Act.

☐Strongly agree

☐Agree

☒Neither agree nor disagree

☐Disagree

☐Strongly disagree

22.   Are there any areas where you think the Part 3 guidance could be improved? Please cite specific parts of the guidance if relevant.

In Annex D section B.4 we are not sure why the UK Government’s accessibility guidelines are linked to instead of the Scottish Accessible Information Forums’ guidelines on the Disability Information Scotland website, which the Scottish Government funds.

Annex E requires updating as it refers to “the Bill”.

For further information, please contact Megan Farr, Policy Officer at megan.farr@cypcs.org.uk or 07803 874 774

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