United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024: child rights and wellbeing impact assessment– updated July 2024

Introduction

1. Brief Summary

Type of proposal (Please tick):

Bill - Yes

SSI - No

Decision of a strategic nature relating to the rights and wellbeing of children - No

Name the proposal, and describe its overall aims and intended purpose:

The United Nations Convention on the Rights of the Child (UNCRC) was adopted by the General Assembly of the United Nations in 1989 and it was ratified by the UK Government in 1991. It sets out the civil, political, economic, social and cultural rights to which all children, everywhere, are entitled.

On the 20^th November 2019, on the 30^th Anniversary of the UNCRC, the Deputy First Minister, John Swinney, announced that the Scottish Government would seek to incorporate the UNCRC into Scots law to the maximum extent possible within the powers of the Scottish Parliament.

The Scottish Government is committed to fully realising the human rights of all people in Scotland. It is committed to building a Scotland where respect for human rights forms the bedrock of society and the institutions which govern and deliver public services for the people of Scotland. The UNCRC (Incorporation) (Scotland) Bill represented a significant step on the road to fully realising that future for Scotland: a future based on tolerance, equality, shared values and respect for the worth and human dignity of all people.

The bill was introduced to the Scottish Parliament on 1st September 2020 and was passed unanimously by the Scottish Parliament on the 16 March 2021 but, before Royal Assent could be granted, a reference was made to the Supreme Court by the Attorney General and Advocate General (the UK Law Officers) challenging sections 6 and aspects of sections 19, 20 and 21 as being outwith the legislative competence of the Scottish Parliament.

On 6 October 2021, the UK Supreme Court found each of the provisions referred by the UK Law Officers to be outwith the legislative competence of the Scottish Parliament.

On 27 June 2023, the Cabinet Secretary for Social Justice provided an update to Parliament about progress with the UNCRC bill, to explain the reason for the time taken to bring the bill back to Parliament, and to share how we proposed to amend the bill to achieve maximum effective coverage of children’s rights, by reducing the risk of any further legal challenge and reducing complexity for users. The UNCRC bill has been amended to bring the provisions within legislative competence in a way that seeks to minimise complexity for users, as far as possible.

As the First Minister set out in his policy prospectus, Scottish Ministers remained absolutely committed to Scotland being the first UK nation to incorporate the UNCRC into domestic law, ensuring we are a country that respects, protects and fulfils children’s rights.

A motion to reconsider the bill was passed on 14 September 2023, and the amendments to the bill were formally lodged with Parliament on 18 September.

In drafting amendments to the bill at Reconsideration Stage, the Scottish Government tried to balance three important considerations: protecting children’s rights to the maximum effective extent possible; minimising the risk of another Supreme Court referral; and making the law as accessible as possible for users. To bring the bill within legislative competence, the judicial remedies would apply only in relation to legislation originating from the Scottish Parliament. The conclusion was also reached that the maximum effective coverage for children’s rights, in the present devolved context, required the compatibility duty to apply only when a public authority is carrying out devolved functions conferred by legislation originating from the Scottish Parliament or common law powers.

Scrutiny of the bill by the Equalities, Human Rights and Civil Justice Committee took place during October and November 2023. The Cabinet Secretary for Social Justice gave evidence to the Committee on 7 November. Following its scrutiny of the amendments that were lodged, the Committee’s letter to the Cabinet Secretary of 17 November set out a range of recommendations but also concluded that the Scottish Government had explored all realistic alternatives and the Committee was content with the approach taken to amending the bill. The Cabinet Secretary responded to the Committee’s recommendations in a letter dated 28 November.

On 7 December 2023, the Scottish Parliament unanimously passed the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill for the second time (official report). The bill received Royal Assent on 16 January 2024 and is now the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act. The provisions of the act will fully commence on 16 July 2024.

In April 2024 section 8 of the UNCRC act and the Criminal Procedure (Scotland) Act 1995 were amended through the Children (Care and Justice) (Scotland) Act 2024 (the Care and Justice act). Section 8 of the UNCRC (Incorporation) (Scotland) Act 2024 deals with the judicial remedies that a court or tribunal can grant on finding that a public authority has acted, or was proposing to act, incompatibly with the UNCRC requirements. Generally, a court or tribunal “may grant such relief or remedy, or make such order, within its powers as it considers effective, just and appropriate”. However, these amendments restrict the application of that judicial power where a criminal court has determined that the decision to prosecute a child is incompatible with the UNCRC requirements. Their effect is that, except in certain circumstances, the Crown Office and Procurator Fiscal Service (COPFS) must be given the opportunity to re-consider its decision to prosecute, in a UNCRC compatible way, rather than the court deserting or dismissing the case.

This amendment was made because the Scottish Government was concerned about the implications for criminal proceedings if, on determining that the decision to prosecute was incompatible with the UNCRC requirements, the court decided that deserting or dismissing the case was the appropriate remedy. The priority of the Scottish Government is to make sure that criminal prosecutions are not deserted or dismissed in circumstances in which the prosecution decision can still be made in a way that is compatible with the UNCRC requirements. This is important to uphold the interests of all involved in a case, including child victims, who may be denied justice if a criminal case is brought to an end in this way.

Start date of proposal’s development: November 2019

Start date of CRWIA process: January 2020

CRWIA reviewed and revised: June 2024

2. With reference given to the requirements of the UNCRC (Incorporation) (Scotland) Act 2024, which aspects of the proposal are relevant to children’s rights?

All aspects of the proposal are relevant to children’s rights.

Of particular relevance was the consideration of how far the protection for children’s rights could be applied within the limits of the Scottish Parliament’s legislative competence.

The act cannot incorporate rights and obligations within the articles of the UNCRC and first and second optional protocols where their inclusion would take the act outside the legislative competence of the Parliament. For example, certain of those provisions relate to reserved matters within the meaning of the Scotland Act 1998. On this basis, the UNCRC requirements (brought into law by the schedule of the act) ‘carve out’ reserved matters from the UNCRC– a version of the UNCRC with those carved out matters textually ‘struck-through’ can be viewed online).

The Scottish Government considered that it was imperative to make clear on the face of the act that the rights and obligations being incorporated remain within their context in the whole UNCRC and optional protocols as a matter of international law. The act therefore, provides in section 4 that the excluded provisions of the UNCRC and optional protocols may still be considered when interpreting the rights and requirements incorporated by the act. The Scottish Government recognises the interpretive value and significance of the preambles and consider that it is helpful to specifically reflect the importance of interpreting the incorporated rights and obligations within the context of the preambles on the face of the act.

By incorporating the following articles of the UNCRC and first and second optional protocols as far as is possible within the scope of the act, the act will have a positive impact on children’s rights:

articles 1 to 42 of the UNCRC;

articles 1 – 11 of the first optional protocol; and

articles 1 – 7 of second optional protocol.

Looking specifically at the potential impact of the section 8 amendment, this may affect:

• children and young people who are subject to prosecution, specifically those who use section 7 of the UNCRC act to invoke the UNCRC requirements during criminal proceedings and where that results in a determination by the court that there has been a breach of the UNCRC requirements; and
• children and young people more generally who could be, or are, impacted by criminal behaviour and have an interest in the effective operation of the criminal justice system.

It has been assessed that the amendment will have a potential positive impact on articles 6, 12, 13, 19, 40 and article 8 of the Second Optional Protocol. Further explanation is provided below.

Article 6: Life, survival and development and article 19 Protection from violence, abuse and neglect

Our assessment is that the amendment have a positive impact on both of these articles. The positive impact is that children and young people may be better protected from serious crime if we reduce the risk that cases are deserted or dismissed when they could have been continued after resolving the UNCRC compatibility issue.

It is acknowledged that the amendment does not apply when the accused is an adult raising a concern that the decision to prosecute is incompatible with the UNCRC requirements and that most cases involving a child victim will involve an adult offender.

Article 12 Respect for the views of the child

By requiring the prosecution to reconsider its decision to prosecute so that, for example, the views of the child can be given due weight, where that might not have been the case otherwise, the proposal could afford the child more opportunity to express his or her views.

If, after COPFS is given the opportunity to re-consider its decision to prosecute, in a UNCRC compliant way, the child or young person is still not satisfied that the decision was compatible with the UNCRC requirements, it may (depending on the circumstances of the new decision) be possible for a further compatibility challenge to be raised. This would allow for sufficient scrutiny and challenge of prosecutions in the context of children’s rights issues.

Our assessment is that the amendment could have a positive impact on the rights in this article.

Article 40 Juvenile justice

This article includes the right to have criminal charges determined without delay. Overall we've assessed that the proposal would have a neutral impact on the speed at which criminal charges are concluded.

If the prosecution could take the decision to prosecute in a UNCRC compliant way by continuing with the existing case and it reached the conclusion (having weighed the best interests of the child against other important considerations such as access to justice for victims and public safety) that prosecution was appropriate, then this would allow a decision about conviction and sentencing to be reached more quickly than it could be if the case was deserted or dismissed and a new case had to be raised.

If the prosecution reached the conclusion that those prosecuting was not the appropriate course of action that would prolong the period before a case is deserted or dismissed. Although this would be a slower route to reaching a conclusion than allowing the court to end the case without giving COPFS this opportunity, it would be difficult to reach the conclusion that desertion was the most appropriate remedy without COPFS re-considering its decision.

The first and second optional protocols

As well as requiring measures to avoid unnecessary delay in the disposition of cases, this optional protocol also requires that States Parties adopt appropriate measures to protect the rights and interests of child victims. We therefore considered if the amendments via the Care and Justice (Scotland) Act 2024 would have any impact on the likelihood that victims would be required to repeat evidence.

This would only be the case if an accused successfully raises a UNCRC challenge after the trial had commenced. We expect that court rules will provide that challenges to the decision to prosecute will be made prior to this, at the intermediate diet, first diet or preliminary hearing (depending on the court hearing the case). Furthermore, in deciding whether prosecution is in the public interest, COPFS will consider impact on victims and witnesses, including as a result of having to give evidence. Our assessment is that the impact would be neutral.

The second protocol states that in the treatment by the criminal justice system of children who are victims of the offences described in the protocol, the best interest of the child shall be a primary consideration. Our assessment is that the proposal is likely to protect victims’ access to justice, wellbeing and safety.

Overall, we concluded that the impact on the rights under article 8 of the first optional protocol were positive.

3. Please provide a summary of the evidence gathered which will be used to inform your decision-making and the content of the proposal.

From existing research/reports/policy expertise

Phase 1 – Model of incorporation

For information relating to the evidence gathered that informed this decision, please see the CRWIA published at introduction of the bill in September 2020.

Phase 2 – Post introduction of bill in 2020 up to but not including reconsideration

On 30 July 2020 Scottish Government published “Coronavirus (COVID-19): closure and re-opening of schools - children's rights and wellbeing impact assessment”. This impact assessment considered the impacts to children’s rights and wellbeing as a result of the closure of schools due to COVID-19, the plan to reopen schools full-time from August 2020, and the associated contingency of a blended learning model.

It is recognised that school closure impacted negatively on most children and young people. However, some groups were more negatively impacted than others. Vulnerable children and young people, including those at risk of experiencing domestic abuse, were unable to benefit from the care and support usually provided by their schools, and associated access to services. Children and young people who experience socioeconomic disadvantage may not have had access to learning resources, technologies and other supports usually provided by schools. Children and young people with additional support needs will not have been able to access the support for their learning which they would usually receive, including that from other agencies. Mitigating actions which were taken to address these impacts are set out in the impact assessment.

Equality and Human Rights Committee Evidence sessions and supplementary evidence

During the committee stage for the bill as passed in 2021, evidence was received from a variety of stakeholders. These included:

Equalities and Human Rights Committee Evidence Session 12 November 2020

• Dr Katie Boyle (University of Stirling)
• Morag Driscoll (Law Society of Scotland)
• Professor Aileen McHarg (Durham University)
• Professor Kenneth Norrie (University of Strathclyde)
• Janys Scott QC (Faculty of Advocates)
• Andy Sirel (JustRight Scotland)
• Professor Elaine Sutherland (University of Stirling)
• Professor Kay Tisdall (University of Edinburgh)

Equalities and Human Rights Committee Evidence Session 19 November 2020

• Bruce Adamson (Children and Young People’s Commissioner Scotland)
• Rosemary Agnew (Scottish Public Services Ombudsman)
• Mike Burns (Glasgow City Health and Social Care Partnership)
• Kavita Chetty (Scottish Human Rights Commission)
• Eddie Follan (Convention of Scottish Local Authorities)
• Alistair Hogg (Scottish Children's Reporter Administration)
• Dragan Nastic (UNICEF)
• Assistant Chief Constable Gary Ritchie (Police Scotland)
• Elin Saga Kjørholt (UNICEF)

Equalities and Human Rights Committee Evidence Session 26 November 2020

• Oonagh Brown (Scottish Commission for People and Learning Disabilities)
• Beth Cadger (Article 12 in Scotland)
• Carly Elliott (Who Cares? Scotland)
• Susie Fitton (Inclusion Scotland)
• Juliet Harris (Together (Scottish Alliance for Children's Rights))
• Kevin Kane (YouthLink Scotland)
• Josh Kennedy (Scottish Youth Parliament)
• Afrika Priestley (Intercultural Youth Scotland)

Equalities and Human Rights Committee Evidence Session 03 December 2020

Supplementary Evidence:

• from Rosemary Agnew, Scottish Public Services Ombudsman
• from Professor Katie Boyle
• from Professor Aileen McHarg
• from Professor Aoife Nolan
• from Professor Kenneth Norrie
• from Afrika Priestly, Intercultural Youth Scotland

Phase 3 – Preparation for reconsideration (after the bill was originally passed)

Equalities, Human Rights and Justice Committee Evidence Session 31 October 2023

• Nicola Killean, Children and Young Peoples Commissioner for Scotland
• Gina Wilson, Policy head CYPCS
• Juliet Harris, Together: Scottish Alliance for Children’s Rights
• Jan Savage, Executive Director, Scottish Human Rights Commission
• Fiona Menzies, Law Society for Scotland
• Dr Andrew Tickell, Lecturer in Law, Glasgow Caledonian University
• Councilor Tony Buchanan- Children and Young People Spokesperson, COSLA
• Chief Superintendent Frew - Police Scotland

Supplementary Evidence:

• from Juliet Harris, Director, Together (Scottish Alliance for Children's Rights), 27 October 2023
• from the Law Society of Scotland, 25 October 2023
• from Police Scotland, 25 October 2023
• from Dr Andrew Tickell, Glasgow Caledonian University, 23 October 2023
• from Social Work Scotland, 23 October 2023
• from Councillor Buchanan, Children and Young People Board Spokesperson, COSLA, 25 September 2023

Phase 4 - Amendment to Section 8

Data on the number of children and young people being prosecuted through the criminal courts suggested that this has been declining.

The most recent data available from the Children and Young People’s Centre for Justice, about the number of children and young people aged 12-17 who are prosecuted through the criminal courts show that this steadily declined between 2016/17 and 2020/21.

Number of 12-17 year olds prosecuted through the criminal courts in Scotland for all crimes and offences

Year	Number of 12-17 year olds prosecuted
2016-17	2072
2017-2018	1772
2018-2019	1585
2019-2020	1208
2020-2021	604

The expectation is that this will continue to decline. Under the provisions in the Children (Care and Justice) (Scotland) Act 2024, the meaning of ‘child’ in the Children’s Hearing (Scotland) Act 2011 and related age-limited legislation has been amended to simplify and clarify that anyone under the age of 18 is considered a child. Provisions in the Care and Justice act provide the opportunity for children to be referred or remitted to a children’s hearing up to age 18, if this is appropriate, when the child is in conflict with the law.

The constitutional independence of the Lord Advocate to pursue criminal proceedings and to prosecute children in court are not affected by the Care and Justice act. Therefore, whilst the overall objective of the Care and Justice act is to create a framework whereby more children are able to be referred to the children’s hearing system, prosecutorial discretion means the legislation can make no direction in this regard. However, in preparing financial projections for the Care and Justice act the Scottish Government has had to make some necessary assumptions, including that the majority of summary court cases involving those aged between 16 and 18 could be referred to the hearings system.

We do not yet have any data on the number of children and young people who will use the section 7 powers in the UNCRC act to successfully challenge the decision to prosecute them, either in summary or solemn cases. Data will become available for collection from 16 July when the powers commence.

From consultation/feedback from stakeholders

The Scottish Government has engaged with a wide range of stakeholders to inform the development of this act, including at Reconsideration Stage.

Phase 1 – Model of Incorporation

For information relating to the evidence gathered that informed this decision, please see the CRWIA published at introduction of the bill in September 2020.

Phase 2 – Post introduction of bill in 2020 up to but not including reconsideration

Embedding in Public Services Group

Previously known as the Guidance Reference Group, the Embedding in Public Services Group comprises of key partners working collaboratively to assist the Scottish Government in progressing with the aims of the Embedding Children’s Rights in Public Services strand.

The Group focusses on providing advice and support for the Embedding team as it progresses with the UNCRC Implementation Programme, and considers how to best support wider cultural change and understanding of children’s rights within the delivery of public services.

The Embedding in Public Services Group was not a substitute for full consultation on statutory guidance in line with the UNCRC Implementation Programme, but ensured that guidance was developed from the outset with the needs of public authorities and rights holders at the centre. It was intended to be a group that can be flexible and can provide more immediate feedback than is possible only through formal consultation procedures.

The group forms part of wider governance and reports directly to the Strategic Implementation Board (SIB) which oversees the UNCRC Implementation Programme.

Strategic Implementation Board

The Strategic Implementation Board (the Board) convened in July 2021 to provide strategic and collaborative leadership for the three-year programme to implement the United Nations Convention on the Rights of the Child (UNCRC) and the provisions in the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill (now Act).

The overall aim of the Board is to provide strategic vision and oversight of a comprehensive and joined up implementation programme so that children’s rights are respected, protected and fulfilled in Scotland. The Board helps to ensure that the implementation programme takes a rights-respecting approach, and that the wider governance structure established to oversee delivery of the programme supports proportionate, effective, balanced and transparent decision making.

The Board has been supporting the Scottish Government in the transformational change required, to ensure children and young people experience their rights being upheld to the maximum amount possible in public services and beyond. The Board has been working together collaboratively and has been supporting links being made with other relevant activity across Government and beyond.

The Board includes representation from leaders in the children’s rights sector, public authorities, private providers of public services and the wider third sector. Across the range of members are those who represent the views of duty bearers and the views of rights holders. Through an interim consortium of children and young people (Rights Right Now!), the experiences, ideas and feedback of children and young people also informed the work of the Board, and the governance structure that sits beneath the Board.

Whilst the Scottish Ministers will retain ultimate responsibility and will make key programme decisions on the delivery of the implementation programme, the Board provides wider strategic oversight, vision, scrutiny and collaborative leadership for the programme. Members of the Board collectively make recommendations to Scottish Ministers based on their distinct expertise.

Phase 3 – Preparation for reconsideration (after the bill was originally passed)

There was engagement with the Strategic Implementation Board, as well as targeted engagement with: UNICEF UK; The Children and Young People’s Commissioner Scotland;, The Scottish Human Rights Commission; some members of the Scottish Youth Parliament; COSLA; and Together (Alliance for Children’s Rights) on the proposals for amending the bill, at Reconsideration Stage. They indicated their support for an approach that mitigated against the risk of further reference to the Supreme Court by UK law officers and reduced complexity for users.

Stakeholder’s evidence to the Equalities, Human Rights and Civil Justice Committee on 31 October 2023 also helped the Scottish Government to understand and respond to requests about: support for public authorities in interpreting, implementing and applying the legal duties in practice; support for children, young people and their representatives to understand the protections available to them; extending the scope of the compatibility duty by re-enacting more legislation in acts of the Scottish Parliament; identifying any UNCRC incompatibilities through an audit of legislation; clear public communication about the provisions in the bill (now act); continuation of the UNCRC implementation programme; and implications for the Human Rights bill. The Cabinet Secretary for Social Justice set out how the Scottish Government proposed to address these requests in a letter to the Committee on 28 November.

Phase 4 - Amendment to Section 8

The Children’s Rights Unit contacted key stakeholders on 24 January 2024 to explain the policy intention behind the proposed amendment and our assessment that it was necessary to protect the rights of children involved in the criminal justice process, including victims as well as accused people. The stakeholders who were contacted were: Together: Scottish Alliance for Children’s Rights; Unicef UK; Scottish Human Rights Commission; and The Children and Young People’s Commissioner.

We discussed the proposed amendment in more detail with the Children’s Commissioner’s Office on 16/02/24 and then shared a draft of the sections of the CRWIA relating to the amendment, with all four stakeholders mentioned above on 23/02/24 and invited them to help refine the assessment of impact on this amendment.

Feedback was received from the Children’s Commissioner’s Office on 26/03/24. They agreed that it is necessary for the rights of all children involved in the case to be considered as part of a determination of the interests of justice and that there may be circumstances where the UNCRC breach in the decision to prosecute can be remedied by the Procurator Fiscal without a disproportionately adverse impact on the UNCRC rights of the child accused. However, they expressed the view that the appropriate decision maker is the court, not the State and therefore disagreed with the Scottish Government’s position that the presumption should be to always allow COPFS to reconsider its decision to prosecute in a way which is compatible with the UNCRC requirements before the court considers whether it is necessary to desert or dismiss the case.

From consultation/feedback directly from children and young people

Phase 1 – Model of Incorporation

For information relating to the evidence gathered that informed this decision, please see the CRWIA published at introduction of the bill in September 2020.

Phase 2 – Post introduction of bill in 2020 up to but not including reconsideration

Equality and Human Rights Committee – Evidence sessions

To fully inform its scrutiny of the bill and to complement its formal evidence sessions, the Equality and Human Rights Committee undertook virtual outreach engagement sessions with children and young people, facilitated and hosted by children and young people's groups.

• Session with 12-18 year olds hosted by Together
• LGBT Youth Scotland
• Scottish Commission for People with Learning Disabilities
• Who Cares? Scotland
• Session with children under 12 Hosted by Together (Scottish Alliance for Children’s Rights)
• Aberlour
• CYCJ (Children and Young People’s Centre for Justice) & Staf (Scottish Throughcare and Aftercare Forum)
• Intercultural Youth Scotland

To accompany this work the Committee also undertook a public consultation to gather the views of children and young people.

Summary of responses from children and young people

Phase 3 – Preparation for reconsideration (after the bill was originally passed)

Scottish Government consulted Scottish Youth Parliament on the proposed approach to amending the bill at Reconsideration Stage. Three young people between 16 and 20 years old were involved in this particular consultation exercise.

They recognised that, given the ruling of the Supreme Court, removing elements of the UNCRC bill that impact UK wide legislation reduced the risk of a further reference to the Supreme Court. They considered that moving forward with a revised UNCRC bill was essential to ensure young people receive enhanced binding legal protection of their rights as soon as possible.

Some specific comments from MSYPs include:

• ‘It doesn’t feel fair but it is sensible. If we can’t put the whole thing in place, it is sensible to start with what we can do now.’
• ‘Yes, this is very sensible. As changes must be made (in order) for the bill to go forward then the changes must be made using this process’.
• ‘The proposal is sensible as it does fully support the young people living in Scotland, and it is an approach that will make changes efficiently and effectively.’
• ‘It is more important than ever due to covid that we offer young people binding rights protections as soon as possible. Whilst this process may take longer to revise legislation, it does offer action now compared to having no legislation.’

In their own words, they said:

• ‘It is important that children and young people are protected by law as much as possible rather than not have any protection of their rights.’
• ‘This is definitely better than having no bill and having to go back to square one.’

We also prepared what we hoped would be a child-friendly explanation of the issues for Members of Children's Parliament who have been involved in the UN Reporting process. However, the complexity of the issues and the short timescale within which we required a response, meant they felt unable to offer a sufficiently informed opinion.

We also ensure that children and young people have a regular platform for raising strategic children’s rights issue through the annual children and young people takeover of Cabinet and Executive Team meetings. These demonstrate a commitment, at the highest level of government, to meaningful and credible engagement with children and young people on issues that matter most to them.

Children and young people from Scotland were closely engaged in the UK’s state party scrutiny by the UN Committee on the Rights of the Child in May. We contributed to this via funding to civil society partners, like Together and the Children’s Parliament, who supported children and young people to have their voice heard by the Committee and by meeting with our delegates who were providing evidence.

To fully inform its scrutiny of the bill, at Reconsideration Stage, and to complement its formal evidence sessions, the Equality, Human Rights and Justice Committee requested evidence from children and young people. Evidence from children and young people was provided via video:

Together, the Scottish Alliance for Children's Rights in partnership with Children's Parliament and Scottish Youth Parliament

Points raised:

• There is still a high number of children and young people that don’t know about the UNCRC and when they are told they assume they are already part of our laws because they are so important
• If we don’t progress with the bill it might become difficult for children, young people and adults to learn about children’s rights.
• Young people should be told about which parts of the UNCRC we are unable to incorporate.
• Young people would like us to go through all of the laws that are no longer covered by the bill and would like us to prioritise which ones we change to bring within scope…. It would put their minds at ease to see us respecting all of their rights and not doing something just because it isn’t covered by the bill.
• Young people would like an online complaints system to report rights breaches.
• There needs to be clear, accessible and up to date information online and children’s rights advice service for children and young people to access….co-designed with children and young people

Children and Young People Scotland Commissioner's Young Advisors

Points raised:

• Like the other group, there is there is still a high number of children and young people that don’t know about the UNCRC. The young people in the group feel they know quite a lot about it because of their role as a young advisors but others don’t.
• The young people understand there are laws that stop us from incorporating all of the UNCRC but that we should aim to incorporate as much as we can.
• Despite education not being covered as much as they would have liked, the revised bill will still result in a positive change for children and young people’s lives
• They feel if the bill doesn’t go through just because it doesn’t cover everything children and young people’s rights won’t be upheld.
• While they would have preferred a bill that incorporated all of the rights, it’s better we incorporate what we can sooner rather than later.
• While the young people would like the duties in the bill to commence as soon as possible they want to make sure there is enough time to implement it effectively.
• If not implemented effectively it will undermine the purpose of the bill.
• However, the young people pushed back on the comments from COSLA that they weren’t ready, as the bill was introduced 2 years ago and so they should be ready for it.
• “Incorporation of the UNCRC would mean that we are no longer having to demand support it will just be like part of our rights”.

To close the evidence session by children and young people, a member of the Children’s Parliament described the impact that the UNCRC (Incorporation) (Scotland) Bill will have as follows:

“it will protect kids in years to come, you’re protecting a million kids now and billions of kids in the future”

4. Further to the evidence described at ‘question 3’ have you identified any 'gaps' in evidence which may prevent determination of impact? If yes, please provide an explanation of how they will be addressed.

Based on published research about the impact of UNCRC incorporation internationally and the use of human rights legislation in Scottish courts, a small increase in the amount of litigation faced by public bodies is anticipated; this will be kept under review after the provisions in the act fully commence.

At Reconsideration Stage, it was recognised that the amendments to the compatibility duty will mean that it will not be straightforward for children, young people and their representatives to establish if they can raise proceedings in a court or tribunal under the act. The Scottish Government is providing funding to ensure that children, young people and their representative have access to free legal advice and to help strengthen child friendly complaints processes to help avoid the need to use the courts to enforce rights. However, it will be important to establish if children, young people and their representatives encounter barriers and gaps in the support, information, and services they need to claim their rights, and to identify if and where additional investment is required. Once the provisions in the act fully commence, the Scottish Government will establish an approach to collecting data to help to understand children and young people’s experience of raising an individual rights issue (formally and informally).

5. Analysis of Evidence

The act adds to the UK’s existing responsibilities under the UNCRC and the first and second optional protocols, as international treaties, which have already been ratified by the UK.

The Scottish Government is committed to an evolution of children’s rights. The UNCRC act will deliver a fundamental shift in the way children’s rights are respected, protected and fulfilled in Scotland, ensuring that children’s rights are built into the fabric of decision-making in Scotland and that these can be enforced in the courts.

The incorporation of the UNCRC into Scots Law will, therefore, have a significant positive impact on children’s rights in Scotland. In addition, the process involved in developing and implementing the act will aid the raising of awareness of children’s rights across Government and Scottish society.

Supreme Court Judgment

The implications of the Supreme Court judgment are, however, that there is a significant loss of coverage for the compatibility duty under section 6 of the UNCRC act, compared with what we originally hoped to achieve, and its associated remedies.

To ensure the reconsidered bill would not face further challenge, the amendments to section 6 were threefold. First, they ensure that public authorities can be found to have acted unlawfully by acting incompatibly with the UNCRC only if the function in connection with which an incompatible action, or failure to act, could competently be conferred on the authority in question by the Scottish Parliament. Second, functions which could competently be conferred by the Scottish Parliament but which are conferred by legislation originating from the UK Parliament rather than the Scottish Parliament are not subject to the section 6 compatibility duty. Third, even where a function is conferred by legislation originating from the Scottish Parliament, a public authority does not act unlawfully by acting incompatibly if it was required or entitled to do so by legislation originating from the UK Parliament.

The amendments to what is now section 24 of the UNCRC act provide that the duty to (so far as possible) read and give effect to legislation compatibly with the UNCRC requirements applies only in relation to legislation originating from the Scottish Parliament. The duty no longer applies to legislation originating from the UK Parliament.

The amendments to what are now sections 25 and 26 of the UNCRC act similarly provide that the powers to strike down legislation or to declare legislation incompatible apply only in relation to legislation originating from the Scottish Parliament. Legislation originating from the UK Parliament cannot be struck down or declared incompatible on the grounds that it is incompatible with the UNCRC requirement.

The act’s judicial remedies will, therefore, not apply to functions carried out by public authorities where the source of their function (whether it’s a power or a duty) originates from UK acts.

There are many existing acts of the UK Parliament in devolved areas that impact on children’s rights. Key legislation which is now outwith the scope of the judicial remedies in the act include:

• the Education (Scotland) Act 1980;
• the Children (Scotland) Act 1995, which includes core provision for looked after children;
• the Social Work (Scotland) Act 1968, the main legislation governing the provision of children’s social work; and
• the Criminal Procedure (Scotland) Act 1995.

However, the full extent of the loss of coverage of the compatibility duty will continue to be explored as the legal sources of functions under which rights issues are encountered come to the fore.

This does not mean children’s rights in such areas cannot be protected and are not a high priority. In education, and in other areas where the compatibility duty may not apply, the Scottish Government – working with partners - has for many years prioritised, and will continue to prioritise, efforts to protect, promote and embed children’s rights.

Irrespective of whether or not the compatibility duty applies, children should have access to a child friendly complaints process through which to raise their concerns about any aspect of service delivery by public authorities and have them addressed. That is why the Scottish Government has provided funding to the Scottish Public Service Ombudsman to develop a child-friendly complaints process for public authorities over which they have jurisdiction.

The different aspects of the UNCRC act and its impact are set out below.

Place a duty on public authorities – The act will make it unlawful for public authorities who are delivering a relevant function to act in a way that is incompatible with the incorporated UNCRC requirements (as defined in the act). The purpose of this duty – referred to elsewhere in this document as the “compatibility duty” is to protect children’s rights and to further the fulfilment of children’s rights in Scotland.

Incorporate in full and directly as far as is possible within the scope of the act – The compatibility duty applies where the public authority, or persons to whom they have delegated their functions in the private, voluntary and independent sectors, are carrying out functions within the scope of the act. This scope has been necessarily narrowed as a result of the implications of the Supreme Court judgment but its capture will, in practice, expand as more devolved legislation is introduced to the Scottish Parliament.

Ensure the rights and obligations apply to public authorities – Many articles of the UNCRC are drafted in a way so as to place obligations on ‘States Parties’. Whilst obligations under the UNCRC will continue to rest on the UK as a matter of international law, effect is given to these obligations across the whole system of government and public administration in Scotland, by the actions of many different public authorities and some private bodies undertaking functions of a public nature. Provision in the act mean that the compatibility duty has a similar effect to the equivalent duty in the Human Rights Act 1998 (HRA), so that public authorities must, when carrying out relevant function, act compatibly with the UNCRC requirements. Provisions in the act mean that the compatibility duty has a similar effect to the equivalent duty in the Human Rights Act 1998 (HRA), so that public authorities must, when carrying out relevant function, act compatibly with the UNCRC requirements.

Apply to all persons under 18 – Article 1 of the UNCRC provides that: “For the purposes of the present Convention, a child means every human being below the age of 18 years unless under the law applicable to the child, majority is attained earlier”. The Scottish Government believes that all children should benefit from the rights and obligations in the UNCRC up to the age of 18. As such, the act provides that, for the purposes of the incorporated rights and obligations, a child is a person under 18.

Give rights holders the ability to challenge breaches of their rights by public authorities in the courts – The act makes a breach of the compatibility duty (i.e., the requirement not to act incompatibly with the incorporated rights and obligations) by public authorities justiciable in the courts. Over time court judgments will inform the interpretation of UNCRC requirements in Scotland and provide more information about what is required of public authorities in practice.

Require claims to be brought within a specified time limit – It is widely recognised that children and young people face additional barriers in realising their rights and seeking access to justice. The approach which the act takes on time limits is modelled on the HRA and the Scotland Act 1998 but with one important difference. The act provides that, in calculating the relevant time limit, any period in which the claimant was a child (for these purposes, when an individual is under 18) is excluded. Once those time limits become applicable, the act provides for the court’s discretion to dis-apply a time limit where it considers it equitable to do so in the circumstances, as under the HRA and Scotland Act 1998.

Enable the courts to make strike down or incompatibility declarators in respect of incompatible legislation originating from the Scottish Parliament. The act enables the Courts to:

(1) make a strike down declarator where the incompatible provision is in legislation which pre-dates the UNCRC act. A strike down declarator is a declarator stating that the provision ceases to be law to the extent of the incompatibility; and

(2) make an incompatibility declarator where the provision is in legislation which post-dates the UNCRC act. An incompatibility declarator is a declarator which states that there is the incompatibility but does not affect the validity, continuing operation or enforcement of the provision which has been declared incompatible.

The powers to strike down legislation or to declare legislation incompatible apply only in relation to legislation originating from the Scottish Parliament. Legislation originating from the UK Parliament cannot be struck down or declared incompatible on the grounds that it is incompatible with the UNCRC requirements.

In conjunction with further measures in the act, the Scottish Government believes the act puts in place a very strong framework which will help to ensure compatibility of all legislation with children’s rights in practice. These powers also add strength to the protection of rights by ensuring a mechanism to highlight legislation that is incompatible and would limit future breaches of rights.

Enable the courts to award appropriate relief or remedy, including damages – The act will require courts to consider whether awarding damages (and, if so the amount of damages) is necessary to provide “just satisfaction”.

Require Ministers to report following an incompatibility declarator or strike down declarator – Where an incompatibility declarator or strike down declarator is issued by a court, the act will require Ministers to state what action they intend taking in response. This statement should be made within a period of 6 months from the court’s decision.

Require the Courts to notify the Lord Advocate and the Children’s Commissioner – The act will require that the Lord Advocate be notified when a court is considering whether to make a strike down declarator or an incompatibility declarator in relation to legislation which is alleged to be incompatible with the incorporated UNCRC requirements. The Scottish Government recognises the significant imbalance of power between children and young people, on the one hand, and Ministers on the other. As such, the act will require that notification should also be given in these circumstances to the Commissioner in order for the Commissioner to have the opportunity to make representations to the Court.

Enable the courts to consider a range of materials as sources of interpretation, including the preambles and excluded provisions of the UNCRC – The Scottish Government recognises the indivisibility and interdependence of the rights and obligations in the UNCRC. The limitations of legislative competence, however, mean that the act requires to ‘carve out’ certain text from the articles of the UNCRC and first and second optional protocols, as they are incorporated in the form of UNCRC requirements. Given this, the Scottish Government considers that it is imperative to make clear on the face of the act that the rights and obligations being incorporated remain within their context in the whole UNCRC and optional protocols as a matter of international law, the act therefore, provides in section 4 that the excluded provisions of the UNCRC and optional protocols may still be considered when interpreting the rights and obligations incorporated by the act. The Scottish Government recognises the interpretive value and significance of the preambles and consider that it is helpful to specifically reflect the importance of interpreting the incorporated rights and obligations within the context of the preambles on the face of the act.

Enable a reference to a higher court – The Scottish Government recognises that it will take time for jurisprudence in relation to the interpretation of the UNCRC requirements to develop. The act will enable lower courts to refer “compatibility issues” (in the case of criminal proceedings) and “compatibility questions” (in civil proceedings) to the higher courts in appropriate cases.

Require that legislation should be read in a compatible way if possible – The Scottish Government considers that relevant legislation should be given effect in a way that is compatible with children’s rights in every case where this is possible. Legislation should only be found to be incompatible where this is not possible. The act will, therefore, require relevant legislation to be read and given effect in a way that is compatible with the incorporated UNCRC requirements, so far as it is possible to do so.

The amendments made to what is now section 24 provide that the duty to (so far as possible) read and give effect to legislation compatibly with the UNCRC requirements applies only in relation to legislation originating from the Scottish Parliament. The duty does not apply to legislation originating from the UK Parliament.

Require scrutiny of future government legislation and strategic decisions made by Ministers – The act will require scrutiny of the compatibility of primary and secondary legislation prior to introduction or laying by requiring the Scottish Ministers to undertake a Child Rights and Wellbeing Impact Assessment (CRWIA) and to make a statement of compatibility. There is an exception for commencement regulations. The act will also place the requirement to undertake a CRWIA on Scottish Ministers in relation to decisions of a strategic nature relating to the rights and wellbeing of children. This is to ensure transparency and accountability in relation to how the Scottish Ministers consider and make provision for children’s rights in their strategic decision-making in practice. The act will require Scottish Ministers to set out, in the Children’s Rights Scheme, the arrangements for preparing and publishing CRWIAs.

Allow for remedial regulations in relation to incompatibilities – It is important that the Scottish Government can act swiftly to remedy incompatible legislation so that breaches or potential breaches of children’s rights can be remedied or not allowed to occur in practice. The act therefore includes powers to make remedial regulations which can be used to amend legislation which is or may be incompatible with the incorporated UNCRC requirements. Importantly, in relation to the amended scope of the compatibility duty, there is nothing in the act that limits the application of this power to acts of the Scottish Parliament, so it could be used, subject to Scottish Parliamentary checks and scrutiny, to address what may be considered to be an incompatibility in a UK act in a devolved area.

Enable the Children’s Commissioner to bring a claim in the public interest – The act makes provision supplementing the current powers of the Commissioner and enables them to raise proceedings under the act. Whilst children and young people or their representatives will be able to raise proceedings under the act, this power recognises that for many children and young people taking action through the courts is challenging and may not be their preferred option.

Require that Ministers publish a Children’s Rights Scheme – The act will require Scottish Ministers to publish a Children’s Rights Scheme (Scheme) setting out what arrangements Ministers have made or propose to make not only to fulfil the compatibility duty (i.e. the duty not to act incompatibly with the incorporated UNCRC requirements) but also to give better or further effect to children’s rights. In particular, the act provides that a Children’s Rights Scheme published by Scottish Ministers may include arrangements of the Scottish Ministers to:

• ensure that children are able to participate in the making of decisions that affect them with access to such support and representation (for example from children’s advocacy services) as they require to do so;
• identify and address any situation where a child’s rights are (or are at a significant risk of) not being fulfilled;
• raise awareness of and promote the rights of children;
• promote complaints handling procedures that children can understand and use;
• ensure that children have effective access to justice;
• protect the rights of children in relation to their interactions with persons, other than public authorities, who provide services which affect children;
• consider the rights of children in the Scottish Government’s budget process;
• ensure that their actions contribute to any national outcome for children determined by them under Part 1 of the Community Empowerment (Scotland) Act 2015;
• prepare and publish child rights and wellbeing impact assessments;
• use, and promote the use of, inclusive ways of communicating that ensure that children are able to receive information and express themselves in ways that best meet their needs (in relation to speech, language or otherwise).

The act requires that the Scheme is laid before the Scottish Parliament. The act will require consultation in relation to making the Scheme and requires that an updated scheme is published and laid annually alongside the Scottish Government’s report on the previous year and plans for the year ahead. The provisions in relation to the Children’s Rights Scheme will ensure that Scottish Ministers are not only accountable for their actions in relation to the compatibility duty under the act, but that they are accountable for planning and reporting how they will fulfil the rights and obligations under the act in practice and giving better or further effect to children’s rights generally.

Repeal Part 1 of the Children and Young People (Scotland) Act 2014 (2014 act) – Building upon the current reporting requirements in section 2 of Part 1 of the 2014 act, listed public authorities are still required to report every 3 years. The act makes similar provision for a reporting requirement, repealing and replacing the existing reporting requirement in the 2014 act, so that listed public authorities must report on the steps taken to fulfil the compatibility duty under the UNCRC act.

Compatibility duties- public functions - The duty not to act incompatibly expressly includes functions of a public nature carried out under a contract or other arrangement. The effect is that the compatibility duty therefore applies to voluntary, independent and private organisations and providers who are carrying out such functions on behalf of a public authority.

The provision for the duty also provides that functions are not excluded solely because they are not publicly funded.

Child’s Views on effectiveness of relief - Where a court or tribunal is considering what relief or remedy to grant in respect of UNCRC compatibility proceedings, a child must (insofar as it is practicable to do so) be given the opportunity to express their views on the effectiveness of the remedy, and their views should be sought on how best to obtain their views. Court rules are being developed to give guidance on how this is done.

Power for Scottish Commission for Human Rights to bring or intervene or be notified in proceedings - Powers are extended to the Commission in line with the those for the Children and Young People’s Commissioner. This allows added protection to intervene in issues affecting children where the expertise of the Commission is more relevant to the matter under consideration.

Guidance for Public Bodies - Scottish Ministers must issue guidance to support the implementation and operation on the duties in Part 1 of the act. The purpose of the guidance is to promote understanding, promote child rights-respecting practice, include information about how to support public authorities to work together to implement and operate this part of the act and secure better or further effect of the rights of children. Consultation to inform the guidance was carried out with children, the Children’s Commissioner for Children and Young people, the Scottish Commission for Human Rights and such other persons as the Scottish Ministers consider appropriate.

Guidance for listed authorities regarding the reporting duty – Scottish Ministers must issue guidance about the carrying out of listed authorities functions to report on actions taken to ensure compliance with section 6 duties and to secure better or further effect of the rights of children.

The guidance is to be informed by consultation with children, the Children and Young people Children’s Commissioner for Scotland, the Scottish Commission for Human Rights and such other persons as the Scottish Ministers consider appropriate.

Consideration of groups at risk of not having their rights fulfilled - The UNCRC sets out the civil, political, economic, social and cultural rights that all children hold up to the age of 18 years old, whatever their ethnicity, gender, religion, language, abilities or any other status. The provisions within this act will affect all children and young people below the age of 18 living in Scotland.

This benefit was noted during the consultation, “Children’s Rights: Consultation on incorporating the United Nations Convention on the Rights of the Child into our domestic law in Scotland” by organisations who represent children and young people. For example, LGBT Youth Scotland highlighted that the right to privacy provided by article 16 can help ensure that LGBT young people’s rights are protected so they are not needlessly ‘outed’ to their families and other professionals by public authorities.

The Scottish Government have also often heard that children with disabilities experience barriers to the realisation of their rights often as a result of the environment in which they live rather than as a result of their impairment. Incorporation of article 23 will ensure their right to live a full and decent life with dignity and, as far as possible, independence and to play an active part in the community can be claimed.

6. What changes (if any) have been made to the proposal as a result of this assessment?

Model of Incorporation

For information relating to the evidence gathered that informed this decision, please see the CRWIA published at introduction of the bill in September 2020.

Children’s Rights Scheme

Based on the recommendations of the UN Committee on the Rights of the Child, learning from the Welsh Government’s children’s rights reporting process and with significant support from consultation respondents (72%), the Scottish Government proposed a children’s rights scheme as part of the reporting process for the bill.

“The young people felt that (a Children’s Rights Scheme) would ensure that people are responsible for their actions and the implementation of the UNCRC is successful in Scotland. This would also help to raise awareness of the rights of children and young people. The young people felt that there would be no reason for incorporating the UNCRC if it isn’t going to be held to an appropriate standard and develop as society develops. It can help to support children and young people ensuring they are at the heart of decision making.”

The scope of the Children’s Rights Scheme will also help to mitigate for the more limited scope of the compatibility duty since it will set out and require reporting on what the Scottish Ministers are doing to give further and better effect to children’s rights, regardless of whether the compatibility duty applies, and for listed authorities to prepare and publish similar reports.

Child Rights and Wellbeing Impact Assessments

While Scottish Government have been preparing Child Rights and Wellbeing Impact assessments since 2015, there was strong support throughout the consultation period and Committee evidence sessions for CRWIAs to become mandatory for all policy and legislation. There was also a request that this was accompanied by a statement of compatibility.

“Child-proofing legislation and policy through child impact assessments is also an important instrument. There are good examples of child impact assessments being introduced in the legislative review process. For example, Sweden, has had a system of child impact assessment for some years as part of its wider National Children’s Rights Strategy. More recently, the Flanders Region in Belgium has introduced an evaluation process, which must be conducted for every draft decree that directly impacts the interests of young people.” (Children’s Right/ Children’s organisation)

“Furthermore, there should be a statutory duty for Child Rights and Wellbeing Impact Assessments to be undertaken as standard in the development of future policy and there should be regular reporting and accountability to Parliament on this.” (Charity/Non-profit)

As a result of this feedback section 17 of the act introduces a duty for all Scottish Ministers to prepare and publish a CRWIA in certain circumstances; all new bills, most SSIs, Covid-19 related school closures, and all decisions of a strategic nature that relate to the rights and wellbeing of children. Section 23 of the act introduces a duty for all public bills to include a statement of compatibility with the UNCRC requirements.

However, while there was a desire from stakeholders for a mandatory CRWIA duty to be applied to public authorities, we chose not to include this in the bill and so there is no such duty in the act. Information about CRWIAs and their usefulness when taking a child rights based approach will be included in guidance. Scottish Government will continue to provide information on CRWIAs, with example templates and signposting to other approaches to CRWIAs.

Reconsideration

The very clear and strong preference expressed by stakeholders was that we should adopt an approach to amending the bill that, as far as possible, eliminated the risk of another referral to the Supreme Court. Stakeholders were made aware of how this would impact on the coverage for the compatibility duty but remained of the view that the least risk approach was their preference. That preference was the deciding factor in the final approach that was taken and the amendments that were lodged at Reconsideration Stage.

As well as stakeholder feedback informing the scope of the duties in the amended bill, the evidence that stakeholders presented to the Equalities, Human Rights and Civil Justice Committee at Reconsideration Stage informed the commitments we gave about how we would seek to mitigate for the loss of scope for the compatibility duty, compared with what we originally hoped to achieve. This included a commitment to commission a review of UK acts in devolved areas. The purpose of that review is to identify provisions in acts of the UK Parliament that may benefit from being re-enacted in acts of the Scottish Parliament, so that they could be brought into the scope of the compatibility duty in the future, if that was deemed achievable and proportionate.

Amendment to section 8 of the UNCRC act

Although the evidence suggests that the number of children and young people prosecuted through the criminal courts will continue to fall, there are likely to be some children and young people who are subject to criminal proceedings, especially for serious crimes. In the interest of public safety and access to justice, it is important that the prosecution of serious crimes can continue when that can be done in a way that is not incompatible with the UNCRC requirements.