UNCRC (Incorporation) (Scotland) Act 2024 - part 2 and 3 (section 18) - statutory guidance: consultation analysis

Introduction

Background

The United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024 (the ‘UNCRC Act’ or ‘Act’) was unanimously passed by the Scottish Parliament on 7 December 2023. It was a landmark piece of legislation that incorporated the UNCRC into Scots law, and aims to empower children and young people to claim their rights, supporting the Scottish Government’s desire to make Scotland the best place in the world to grow up. The UNCRC includes the following general principles:

• For rights to be applied without discrimination (Article 2);
• For the best interests of the child to be a primary consideration (Article 3);
• The right to life, survival and development (Article 6); and
• The right for the child to express a view in matters that affect them and to have that view taken into account in accordance with the child’s age and maturity (Article 12).

The intent behind the UNCRC Act is to deliver a proactive culture of everyday accountability for children’s rights across public services in Scotland. It will require all of Scotland’s public authorities to take proactive steps to ensure the protection of children’s rights in their decision-making and service delivery and make it unlawful for public authorities, including the Scottish Government, to act incompatibly with the UNCRC requirements as defined in the Act.

The Scottish Government’s vision is for Scotland to be a place where children's rights are embedded in all aspects of society and where policy, law, and decision-making take account of children's rights. It also wants Scotland to be a place where all children can share their views and are empowered to be human rights defenders.

In accordance with section 47(2)(a) of the Act, Part 2 (duties on public authorities) and Part 3, section 18 (reporting duties of listed public authorities) of the Act came into force six months after Royal Assent (on 16 July 2024).

Under sections 13 and 20 of the UNCRC Act, Scottish Ministers must issue guidance to support the implementation and operation of all of Part 2 and Part 3 (specifically, section 18, the reporting duty of listed authorities) of the UNCRC Act respectively.

The public consultation

To support the development of the statutory guidance, the Scottish Government conducted a public consultation which sought feedback on draft guidance. The consultation opened on 22 February 2024 and closed on 16 May 2024.

The consultation was available on Citizen Space, the Scottish Government’s online portal for public consultations. In addition, four partner organisations conducted direct consultation activities with children and young people in order to canvass their views. This included age appropriate activities, focus groups, and interviews which followed a standard topic guide designed by the Scottish Government.

The main consultation document sought feedback on specific areas and sections of the draft guidance, focusing on whether sufficient information had been provided, whether the information was clear, understandable and useful, and whether it was presented in an accessible manner. Respondents were asked 33 questions in total, including:

• 20 closed questions (i.e. where respondents were asked to select an option from a list of responses); and
• 13 open questions (i.e. where respondents were asked to provide comments and feedback in free text format).

Consultation activities with children and young people elicited feedback on six key topics, including:

1. Introduction and overview of children’s rights;

2. What public authorities need to know about children’s rights and the UNCRC Act to respect, protect and fulfil children’s rights;

3. Identify and address any situation where a child’s rights are (or are at a significant risk of) not being fulfilled;

4. Ensure that children have effective access to justice;

5. Reporting requirements for listed public authorities; and

6. Inclusive communication.

Respondent profile

In total, 92 written responses were received to the consultation. This included 73 responses submitted via Citizen Space, and 19 which were submitted via email. Most responses were submitted by organisations, with 74 organisational responses and 18 responses from individuals. It should be noted that one individual response was recoded as an organisational response during the data cleaning process as it represented views from a group of people collectively responding in a professional capacity.

In addition, one organisation provided an event write-up as their consultation response. Issues highlighted in this were cross-referenced to the main consultation document and analysed and reported alongside the relevant data from all other responses.

While consultation analysis would typically allocate organisations by sector, either by asking the respondents to self-identify, or via analysts post-coding this data, it was decided that such classifications would be inappropriate on this occasion. The UNCRC will apply to public authorities as defined by the Act. Importantly, this definition includes those delivering ‘functions of a public nature’ which could apply to private, voluntary and independent (PVI) organisations. In order to avoid any inferences being drawn about the nature of individual organisations and the applicability of the duties in the UNCRC Act, the Scottish Government advised that organisational sectors would not be required for the analysis. As such, disaggregation of the data was undertaken at the individual vs organisation level only.

As noted above, four organisations also conducted consultation activities directly with children and young people. This included:

• Organisation 1: worked directly with children between early years and up to the age of 14. This organisation led four focus groups to gather feedback;
• Organisation 2: worked with those aged 11 to 26 and held two focus groups;
• Organisation 3: worked with primary school aged children (P1s), working with two groups of children and splitting activities over four sessions with each group (i.e. 8 sessions in total). It should be noted that this cohort focused on the first two topics only; and
• Organisation 4: worked with children and young people aged 12-18 who have additional support needs. This organisation conducted a series of interviews.

The consultation feedback activities involved 55 children and young people in total. This covered a range of age groups, demographic backgrounds, and geographic locations.

Caveats and reporting conventions

There was evidence of some co-ordination of responses, with a few organisations expressing support for others’ responses and/or paraphrasing some of the content of other organisations’ responses. All responses were treated individually and with equal weight within the analysis.

The following results focus on the main issues and topics highlighted by respondents. As such, general topics or issues set out by only one respondent have not been included. Issues that were highlighted by only one respondent may, however, have been included where this contributes to or illustrates a wider point. This has been noted in the text.

Where respondents gave permission for their responses to be published, these can be read on the Scottish Government’s website.

It should be noted that, while most respondents tended to be supportive and responded positively to most of the questions asked throughout the consultation document, much of the qualitative feedback focused on caveats, concerns or suggestions for further improvement. Substantive comments which focused on reasons for support were often limited, in both number and content.

Due to the low number of responses from individuals, and the limited qualitative comments provided by this group, most of the quotes reproduced in this report have been taken from organisational respondents.

A large number of responses also outlined very precise issues, concerns or suggestions for edits related to specific sentences, paragraphs or sections of the draft guidance. Each suggestion was typically offered by one respondent. Due to the unique and highly specific nature of these comments, this information was extracted and provided to the Scottish Government to support drafting activities, and is not included in this report.

Responses to the main consultation document were analysed separately to the feedback from focus groups with children and young people. Findings from the main consultation are set out first, followed by a dedicated chapter which outlines the results of the children and young people’s feedback.

Finally, the findings here reflect only the views of those who chose to respond to this consultation. It should be noted that respondents to a consultation are a self-selecting group. The findings should not, therefore, be considered as representative of the views of the wider population.