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

Part 2 Guidance

Introduction

The draft statutory guidance on Part 2 of the UNCRC (Incorporation) (Scotland) Act 2024 consisted of the following sections:

• An introduction to human rights, children’s rights and the UNCRC Act, including a definition of ‘UNCRC requirements’ as included in the Act;
• An introduction to Part 2 of UNCRC Act including frequently used terms and remedies now available to children and their representatives to seek redress through the courts if their rights have been (or a proposed action would mean that they would be) infringed;
• Definitions of key terms in the Act;
• An explanation of the section 6 duty on public authorities; and
• A series of Annexes with further information to assist public authorities in applying the section 6 duty, including:
  • An introduction to concepts within the UNCRC relevant to the Act and their interaction with other human rights treaties ratified by the UK;
  • Sources to guide interpretation of the UNCRC; and
  • A framework that public authorities may wish to use to review compatibility with UNCRC within their practice.

Respondents were asked to provide feedback on the Part 2 guidance, specifically in relation to Sections 2 and 3, as well as the supporting Annexes.

Q1. I have read the draft statutory guidance on Part 2 of the UNCRC Act

	Number	Percent	Valid Percent
Yes	81	88%	99%
No	1	1%	1%
Not Answered	10	11%	nil
Total	92	(n=92)	(n=82)

Section 3: Background and introduction to the UNCRC Act

Q2. Section 3, ‘Background and introduction to the UNCRC Act’, provides sufficient information on the UNCRC and the background to incorporation

	Number	Percent	Valid Percent
Strongly Agree	29	32%	35%
Agree	47	51%	57%
Neither agree nor disagree	3	3%	4%
Disagree	3	3%	4%
Strongly Disagree	0	0%	0%
Not Answered	10	11%	nil
Total	92	(n=92)	(n=82)

Most respondents (92%, n=76) who answered the closed element at this question either agreed or strongly agreed that Section 3, ‘Background and introduction to the UNCRC Act’, provided sufficient information on the UNCRC and the background to incorporation. Very few respondents (4%, n=3) disagreed.

Reasons for support

Respondents largely felt that this section was clear and provided a lot of helpful information and context:

“Section 3 provides a clear explanation in relation to the origin and development of the UNCRC incorporation, which is informative and provides the context at an appropriate level.” (Organisation)

It was considered to provide a comprehensive overview of the UNCRC Act, its history of incorporation, and the key principles:

“The background and introduction for professionals provides a good overview of UNCRC, including its history, purpose and significance. In particular, it highlights how UNCRC is a core framework for informing government strategies and workplans to fulfil the rights of every child.” (Organisation)

In particular, respondents felt that the guidance was pitched at the right level to be informative and helpful for practitioners working in the area, as well as for those that may be less familiar with the UNCRC or children’s rights.

A few respondents also appreciated that it provided examples of existing Scottish policy and legislation, and highlighted relevant links to international human rights laws and existing legislative context. While some felt it used simple language that was not overly technical or legalistic, and that it was focused and succinct, others felt that this section was long and could be shortened to make it easier for practitioners to refer to and access. For example, it was suggested that the history and development section could be provided as an infographic or flowchart.

Caveats, concerns and reasons for disagreeing

While only a handful of respondents (n=6) explicitly disagreed or neither agreed nor disagreed that Section 3 provided sufficient information on the UNCRC and the background to incorporation, the reasons given often correlated with caveats, concerns or suggestions for improvements given by those who agreed. All such comments have been collated below.

A few respondents felt that there was a lack of clarity and detail around who the guidance was for, what was within and out of scope, etc. They suggested that the guidance provided only limited support, and stressed that much more support and more practical guidance would be required:

“…by focusing on the strategic implications of the Act rather than on the consequences, in practice, of the rights it enshrines, the guidance produced is insufficient in effectively guiding the public sector in what is a laudable but complex policy endeavour… the vacuum left by a lack of detailed practical guidance accompanying the Act means that limited capacity within local government will need to be redirected towards the development of more detailed guidelines for services, whilst exposing LAs [local authorities], and public sector partners to increased risks of liability.” (Organisation)

While many respondents felt this section was clear and pitched at the appropriate level, a few suggested it was not user friendly and required previous awareness and involvement with the UNCRC. It was said to be potentially overwhelming and unhelpful for those entirely new to the UNCRC Act and its principles, and not user friendly for such readers.

Some respondents were keen to stress that the guidance needed to make clear that, where reference is made to ‘children’s voice’ (at Section 3.1, pg. 9), this is shorthand terminology for all forms of communication and expression, to ensure the views of pre- and non-verbal children are acknowledged and included. Indeed, it was suggested that this might be better described as a right to “participate”:

“Throughout the guidance, there is use of the term “children and young people’s voices”. We would like to see recognition that young people’s voices, views and expressions of experience and need come in many forms not just the spoken word. Voice in this context may also include non-spoken communication but this should be clear in the guidance and if it does not include non-spoken communication then it absolutely should.” (Organisation)

Respondents also stressed that giving children a ‘voice’ required their views to be taken on board, given appropriate weight, and for this to have an influence on decision-making (i.e. listening and responding to voices rather than simply letting them be heard).

A few respondents also suggested that the guidance (at Section 3.2, Incorporation history in Scotland) should acknowledge the role that children, young people and adult human rights defenders have played in campaigning for the incorporation of the UNCRC. They felt this was important, both to recognise their efforts, and to be in keeping with the principles of the UNCRC itself.

It was also stressed that the guidance and overall approach to the UNCRC needed to mindful of other Bills and legislation that already exist or are being progressed with the intention of implementing them. Respondents wanted to ensure that a joined up approach was taken in order to avoid any inconsistency or duplication, Key legislation included the Human Rights Bill, the Equality Act and the Public Sector Equality Duty, all of which do/will place expectations and duties on organisations.

Some respondents felt it would be helpful to provide examples of the rights that this Act covers and to include hyperlinks to the various articles being referred to (i.e. the UNCRC requirements in the Act), as well as links to any Bills, Acts, documents or further information. It was said that this would be helpful and provide greater understanding for readers.

A small number of respondents felt that there was insufficient detail provided around how the UNCRC will positively impact specific groups, including Gaelic-speaking children and young people.

Section 3.3: Meaning of UNCRC requirements

Q3. Section 3.3, ‘Meaning of UNCRC requirements’, clearly articulates what is meant by this in relation to the section 6 duty

	Number	Percent	Valid Percent
Strongly Agree	9	10%	11%
Agree	50	54%	59%
Neither agree nor disagree	10	11%	12%
Disagree	12	13%	14%
Strongly Disagree	3	3%	4%
Not Answered	8	9%	nil
Total	92	(n=92)	(n=84)

Nearly three quarters (70%, n=59) of respondents who answered the closed element of this question agreed or strongly agreed that Section 3.3, ‘Meaning of UNCRC requirements’ clearly articulated what was meant in relation to the section 6 duty. However, 18% (n=15) disagreed with this.

Reasons for support

While most respondents agreed that this section clearly articulated the meaning of UNCRC requirements, qualitative comments outlining the reasons for this were very limited. Generally, it was felt this section was clear, helpful, and provided a good summary:

“The guidance outlined in Section 3.[3] succeeds in clearly articulating the definition of ‘UNCRC requirements’. It also benefits from further articulating that some articles included in the convention have been removed from the Act due to their interference with reserved matters outside the competence of the Scottish Parliament.” (Organisation)

Caveats, concerns and reasons for disagreeing

Most respondents, including those who agreed at the closed element of this question, focused their qualitative comments on caveats and concerns, or provided suggestions for ways in which this section could be further enhanced. Three key issues were raised repeatedly by respondents, including:

• The need for greater clarity around when organisations would be considered ‘public authorities’ or delivering ‘functions of a public nature’;
• Issues related to UNCRC requirements, the Articles of the UNCRC, and the first and second optional protocols; and
• Accessibility issues.

Responses relating to each of these issues are detailed in the sections below.

Clarity on being a ‘public authority’

One of the main issues for respondents was the need for more detail and greater clarity on the intended scope or definition of a ‘public authority’ in the context of the UNCRC - in particular, in what circumstances would this extend to independent and third sector organisations. Similarly, respondents called for greater clarity to be provided around who would be required to comply with these duties. It was suggested that examples of which professionals, roles, and organisations were envisaged as undertaking this would be helpful, as well as examples of ‘functions of a public nature’:

“We would like to see a clear statement about where independent sectors and third sectors meet the definition of public authority. We would need further clarity where circumstances like this may arise.” (Organisation)

A few respondents noted that, while more detailed information was provided later in the guidance (at Section 4.3 and in Annex B), including more information on this aspect at this section would be helpful. It was also noted that signposting or linking to the later sections of the guidance would support readers to find the necessary information.

Requirements, articles and protocols

Several respondents felt that the wording in relation to ‘UNCRC requirements’ could be made clearer to better convey the meaning, intention and scope, including clarifying who they apply to:

“We wonder if referring each time to ‘UNCRC requirements as incorporated by the Act’ rather than the shortened version of ‘UNCRC requirements’ might make clearer that it is the requirement of the Act which are being referred to rather than those of the full convention. For those accessing the guidance this distinguishes more clearer the basis of what is being asked of them.” (Organisation)

It was also suggested that the guidance needed to make clear that the UNCRC requirements includes the rights set out in the first and second option protocol. Respondents felt that some additional context was required in relation to the optional protocols to clarify what this refers to or what these are:

“It should be made clear from the outset that ‘UNCRC requirements’ includes the rights and obligations arising from the first and second optional protocols, as well as from the UNCRC itself. We would welcome this being clarified in the first paragraph of this section.” (Organisation)

In relation to the presentation of the 54 articles of the UNCRC, it was suggested that this could also be clearer. This section was described as confusing and misleading and, in particular, it was felt that the current wording could be interpreted as meaning that Articles 11 and 38 were not covered at all by the Act. It was suggested that greater clarity was needed on which sections of the articles were included in the UNCRC requirements and which aspects of the articles were removed (as they relate to reserved matters under the Scotland Act 1998 that are outwith the legislative competence of the Scottish Parliament). It was also suggested that descriptions of Articles 7, 11 and 38 could be simplified, that signposting or links should be included within the main body of the Section 3.3 to Annex B, Annex C1.1 and Annex D to highlight where further information can be found, and that the examples of reserved matters and their practical application should be extended to include every example in relation to relevant articles.

Accessibility issues

Some respondents (including many who disagreed at the closed question) felt that this section was unclear or not easy to understand. It was suggested that some of the language may be too technical and needed to be simplified:

“Section 3.3 is succinct, however, it contains a significant amount of jargon which may hinder full understanding. The language could be simplified to make understanding easier.” (Organisation)

It was also felt that a level of existing knowledge and understanding of devolved and reserved issues was required, as well as potentially some legal expertise in order to understand and interpret this section of the guidance. It was noted that organisations would have to take advice from specialist advisors and/or obtain legal advice in order to fulfil their duties - this could not be achieved from the guidance alone. There were concerns that different interpretations may lead to variations in approach, and that children and their families may find the devolved versus reserved issues difficult to understand.

There were also responses related to the term ‘carved out’, with respondents requesting further consideration and clarity on this. It was suggested this terminology felt informal and could lead to misinterpretation. Respondents felt that a clearer explanation of the process was needed, as well as mechanisms to ensure members of the public, practitioners, and other partners were clear on which elements had been ‘carved out’ when accessing or cross-referencing other information sources on the UNCRC.

Other comments and suggestions

A few respondents provided other comments and suggestions in relation to Section 3.3, as outlined below:

• More detail and context is required around the section 6 duty to enhance understanding;
• Additional supporting information and examples were said to be needed throughout this section; and
• It was seen as unhelpful and cumbersome having to move between two documents, rather it was suggested that the UNCRC requirements as set out in the Act be included here in full.

Section 4.2: Remedies for unlawful acts (sections 7 to 10)

Q4. Section 4.2, ‘Remedies for unlawful acts (sections 7 to 10)’ is useful

	Number	Percent	Valid Percent
Strongly Agree	10	11%	12%
Agree	54	59%	67%
Neither agree nor disagree	11	12%	14%
Disagree	5	5%	6%
Strongly Disagree	1	1%	1%
Not Answered	11	12%	nil
Total	92	(n=92)	(n=81)

Over three quarters (79%, n=64) of the respondents who answered the closed question agreed or strongly agreed that Section 4.2, ‘Remedies for unlawful acts (sections 7 to 10)’ was useful. Only a handful of respondents disagreed (7%, n=6) .

Reasons for support

Again, although most respondents agreed that Section 4.2 of the guidance was useful, the qualitative justifications for this were limited. Generally, respondents felt this section of the guidance was useful, helpful, user friendly and easy to understand. Specific elements which were highlighted as being helpful and welcomed included:

• The longer time period available for breaches to be reported;
• The impact on record and management systems being noted;
• The requirement for child friendly complaint processes;
• That the guidance clearly outlined remedies and how to access them; and
• The provision for both judicial and non-judicial methods, along with the offer of support for alternative redress, and the provision of extra powers to the Children and Young People’s Commissioner Scotland (CYPCS) to seek remedies on behalf of children.

It was also appreciated that respecting the child’s view was central to this section of the guidance.

Caveats, concerns and reasons for disagreeing

Most of the comments and feedback provided outlined caveats to support and highlighted concerns or suggestions for improvements. The main concerns related to the accessibility of the section; potential impacts of information management and record keeping; issues related to the proposed child friendly complaints process; issues related to bringing redress proceedings; and possible resource implications.

Accessibility issues

Several issues related to the accessibility of this section were highlighted by respondents. In particular, respondents suggested that this section would benefit from restructuring and simplification.

It was felt that clarity was needed over who was covered by the section 6 duty (i.e. a definition of a ‘public authority’), what the relevant ‘functions of a public authority’ would be, and what the responsibilities were (and what compliance might look like for different sectors and sizes of organisation). It was recommended that this information should be provided before consideration of breaches of duties and remedies. This would both be consistent with the order they appear in the Act and be more logical for the reader.

Several respondents also advocated for alternative structures, with a few suggestions being proposed, as follows:

• 4.1. Introduction, 4.2. Definitions, 4.3. Explanation of duties and 4.4. Remedies for unlawful act;
• 1. Definition of a public authority, 2. Explanation of duties, 3. Reporting procedures (mechanisms for children to access remedies), 4. Remedies of unlawful acts; or
• Structuring the information under the following headings: ‘sufficient interest to raise proceedings’, ‘time limits on raising proceedings’ and ‘audit trails’.

It was also felt that the language used in this section could be simplified and made more user friendly. Again, it was said to include legal jargon which was difficult to understand:

“This section could be useful if it were drafted more clearly, using language which is less legalistic and more accessible.” (Organisation)

Terminology which was flagged as requiring greater clarity, detail and examples included: ‘time-bar’ and the ‘lack of time-bar’, ‘exceptions’, ‘incompatibility’, ‘good faith’, ‘judicial remedy’, ‘non-judicial remedy’, ‘relief’, and ‘complaints procedures’.

One specific area that respondents found difficult to understand was the ‘time-bar’ on children bringing actions. In particular, this was a key concern for most of those who explicitly disagreed that Section 4.2 was useful. It was felt this could be clearer, with a few suggesting that a chart or diagram may help make this more accessible. Respondents also suggested that the current wording was confusing and potentially contradictory as the guidance refers to a one year time limit while also stating there was a lack of a time-bar.

Information management and record keeping

Respondents noted the challenges to organisations in terms of recording and keeping information due to the lack of a time-bar and the provision of such a wide time period for children to bring complaints. One organisation sought more information about the level of detail that would be required in any audit trail, while another suggested that any guidance in this respect needed to be sufficiently broad to be applicable to independent and third sector organisations as well as public bodies.

One organisation also highlighted record keeping issues in partnership working situations. They noted that decision-making for children and young people often takes a staged approach, across multiple systems and involving more than one agency. Therefore, consideration may be required in relation to how multiple listed authorities should review concerns when they involve partnership processes:

“…keeping the time-bar intentionally wide may present challenges for both listed authorities and the partnerships they work within, in terms of designing, delivering and sustaining systems to investigate and address complaints or rights-based challenges either in real time or particularly where these apply to retrospective claims.” (Organisation)

A few respondents stressed the need for guidance on how the requirement to retain data for extended time periods aligned with data protection and the UK General Data Protection Regulation (GDPR), while others noted that clarity and caution was also required in relation to the need to protect the child’s right to privacy within such record keeping.

Child friendly complaints process

Respondents suggested that more detail was needed in relation to the child friendly complaints process. They sought clarity on what this would look like, details of best practice in this regard, and further information on how this could resolve complaints before they reach court. It was also suggested that the guidance should explicitly state that there is no requirement for a child to exhaust this route before accessing the courts.

A few felt that the guidance should incorporate the Scottish Public Services Ombudsman’s child friendly complaints process guidelines when published, or make more specific reference to these, and that it would be helpful to reference other non-statutory guidance. Respondents noted that they would welcome the Scottish Public Services Ombudsman’s guidelines as soon as possible.

In addition, a few respondents suggested that independent advocacy and certain third sector support organisations will be especially important in supporting children and their families to seek redress/remedy. It was felt that provision for this should be included in the guidance.

Bringing proceedings

A few organisations wanted more information, clarity and examples or case studies over what might constitute a breach. Others were interested in understanding what the range of sanctions might be for non-compliance:

“…there is no indication in this statutory guidance of what may constitute a breach. It would be helpful to have an indication of thresholds and/or case examples of what a breach could look like in practice.” (Organisation)

It was also felt that greater clarification was required over who is entitled to bring proceedings, and who they can be raised against.

Information, guidance, advice, training or further awareness raising work was also said to be required to ensure that children and young people were aware of their rights, the process for taking action and/or bringing proceedings, and any timeframe set for public authorities to respond. Otherwise, there was concern that there may be low uptake of this provision.

One organisation felt the guidance should emphasise that going to court is especially challenging for some children e.g. those living in poverty, with additional support needs, or care experience. Another organisation felt that ethnic minority children should be added to the list of those who are likely to find it difficult to access the complaints process, along with those who experience cultural and religious barriers.

Further explanation was said to be needed on children’s capacity to instruct a solicitor or raise proceedings, and who would take decisions around capacity. While the Age of Legal Capacity (Scotland) Act 1991 is referenced in the guidance, it was noted that no further information was provided in relation to how children can access justice or exercise their rights under the UNCRC Act. It was suggested that more guidance was needed around capacity, with specific reference to children with additional support needs and the age/stage of the child.

It was felt that more emphasis was needed within the guidance on conciliatory and non-court approaches, and that the details of the child friendly complaints procedures should be outlined earlier in the section to support this. It was also suggested that more details and examples were required on steps that could/ should be taken before resorting to court proceedings, and that information was needed on the thresholds for moving through different complaint and redress stages and through the courts:

“We feel strongly that this guidance should make it clear that the question of remedy should not just be thought about in the context of court action, and damages. There needs to be a much broader approach, focused on early solutions and a willingness to listen, respect, learn and amend. This, in turn, should avoid the need for court and encourage the preventative way of working that we hope will be part of the culture change this Act should spark.” (Organisation)

Resource implications for public authorities and support organisations

Several respondents took the opportunity to raise concerns outwith the scope of the statutory guidance consultation. Respondents noted concerns about resource and funding implications, both to implement the requirements and in relation to remedies that may be required. One organisation suggested that a phased/ progressive approach may need to be adopted, while a few sought clarity on this either via the guidance or from the results of any challenges in the courts:

“There is concern about resource and funding implications for remedies, particularly around the provision of appropriate and not incompatible with UNCRC housing provisions. We again look forward to any clarity on this point, either in guidance (for example is there a reasonableness test to be included?) or following the first few challenges making their way through court.” (Organisation)

One organisation flagged potential resource implications for those agencies and professionals that would be most likely to support children in any complaints and redress processes. This included teachers and school staff who would be likely to act as supporters, and advocacy services who already have limited capacity and might therefore require additional investment to support any increase in demand.

More specifically, there was concern that, as the Part 2 Guidance only explains what is in the Act and thus covers legal proceedings, rather than informal and reconciliatory processes, the focus could be perceived to be onlegal cases over addressing issues out of court. It was felt that the current pressures on public services and their lack of resources could mean that child friendly complaint processes cannot be fully implemented, which would increase the risk of legal routes being used instead. As such, respondents feared that public authorities could spend increased amounts of time on information recording/audit trails and in legal challenges rather than delivering services.

It was suggested that, without sufficient investment, funding and resourcing, the UNCRC Act could suffer from an implementation gap, resulting in increased expectations that cannot be met in practice.

Other comments and suggestions

Only a few other comments and suggestions were outlined in relation to Section 4.2, including:

• A perceived need for further details and examples to support public authorities with compliance and understanding what the legal remedies will mean in practice;
• More detail being needed on where and how legal advice can be accessed within an NHS context; and
• The need to clarify how incorporation of the UNCRC supports the interface with the Children and Young People Act 2014 regarding age and entitlement of children who are care experienced to receive supports up to age 26 years.

While not specifically covered within the guidance at this section (as it was included in later sections), a few respondents suggested that it should be clearer from the outset that the section 6 duty applies to both actions and omissions or failure to act:

“There is a need to clarify from the outset that the compatibility duty applies to both actions and omissions/failures to act (s.6(1)). Without this clarification there is a risk that omissions/failures to act are not adequately considered.” (Organisation)

Section 4.3.2: Definition of a public authority

Q5. Section 4.3.2 ‘Definition of a public authority’ is clear

	Number	Percent	Valid Percent
Strongly Agree	15	16%	18%
Agree	24	26%	29%
Neither agree nor disagree	16	17%	19%
Disagree	29	32%	34%
Strongly Disagree	0	0%	0%
Not Answered	8	9%	nil
Total	92	(n=92)	(n=84)

Mixed views were provided at this question, with less than half (47%, n=39) of those who answered the closed question indicating that they agreed or strongly agreed that Section 4.3.2 ‘Definition of a public authority’ was clear, while around one third (34%, n=29) disagreed. This question attracted the largest proportion of respondents who disagreed across the consultation.

Reasons for support

Some respondents commented that this definition was clear and useful, especially insofar as it differentiated between (and included examples of) public authorities, the ‘grey areas’, and ‘core’ and ‘hybrid’ public authorities. Other comments reflected that it was helpful for this section to cover contractors and joint commissioning. However, some felt that the current guidance left room for different interpretations and the main focus of responses was how greater clarity could be achieved.

Caveats, concerns and reasons for disagreeing

While it was clear that cases would need to be considered on a case-by-case basis, and relying on case law and judicial scrutiny would be necessary, it was felt that this could be confusing. Getting this part of this guidance right was seen as fundamentally important since it will clarify who the duty-bearers are and ensure that they understand their legal obligations.

Overall, the descriptions were considered to be “lengthy”, “unclear”, and “inaccessible” due to the language used, with a lack of clarity and an overly complex process to determine applicability. While the current guidance was helpful to local authorities, and those who were clearly ‘core’ public service providers (such as the NHS), several respondents questioned if the definition would be clear to others. It was suggested that this section of the guidance needed to be clearer, more accessible and understandable to a wide range of different organisation types:

“We believe Section 4.3.2 of the guidance lacks clarity and presents an overly complex process for organisations to determine whether they are included in the definition of a public authority or delivering functions considered of a public nature. Given that defining whether an organisation is considered either a public authority or operating in a public nature is necessary to determine compatibility duties under the Act, the guidance needs to be accessible and easily understandable to a wide audience of stakeholders.” (Organisation)

In particular, it was felt that small and new private, voluntary and independent (PVI) sector organisations, or those with more limited capacity would struggle to engage with the guidance. It was suggested that local training and support may be more beneficial to ensure the duties are understood.

Others suggested that the three reflective questions for PVIs to consider within the guidance did not currently provide sufficient clarity and further attention could be given to these, including the provision of tangible/illustrative examples of PVIs delivering public functions. Including the abbreviation ‘PVI’ within the title was also suggested, although comments were made that ‘third sector’ may be a more widely understood/accepted term. One organisation suggested that examples detailing the different ‘faces’ of a public authority may be useful to support organisations to identify their roles and responsibilities within the legal framework.

Greater clarity was also desired in relation to ‘hybrid’ public authorities, who they are and what types of activities would be in scope. It was suggested that including a list of examples and situations where organisations would be considered ‘hybrid’ public authorities would be helpful. It was felt unlikely that many third sector organisations would consider themselves to be a ‘hybrid’ public authority, or that many children and young people and their families would understand this term. One organisation suggested that the focus should be on providing public functions rather than including the term ‘hybrid public authority’.

A gap was also identified around public authorities carrying out services which do not necessarily involve direct engagement with children and young people but whose work and decisions nonetheless impact upon them. For example, authorities working with parents/carers of children and young people, or those who provide funding to services working with children and young people:

“…we feel strongly that it is also of crucial importance that the guidance makes explicitly clear that the Act applies to public authorities whose decisions which have an impact on children and young people even where their remits do not necessarily directly focus on children and young people.” (Organisation)

One organisation also noted that they considered it important that all registered charities that impact on children’s lives should be considered under the definition of a public authority.

While the information on commissioned services was welcomed, more details, greater clarity and guidance was also said to be needed on the duties of commissioned services, sub-contractors and delegated actions, and on how liability between public authorities and sub-contractors would operate in practice. Clarity was also needed as to whether the duty applied where there is no service level agreement in place:

“Further clarity on the duties of sub-contractors or delegated actions would be appreciated. We accept public authorities cannot contract out of duties imposed, however, guidance on how this will operate in practice would be appreciated. For example, what if a sub-contractor is in breach of specific clauses requiring not incompliant with UNCRC actions? Would the public authority still be liable for the breach, despite efforts to ensure the duty is discharged and fulfilled?” (Organisation)

In addition, it was suggested that greater clarity was also needed around the position of organisations/services which receive government or other public authority funding towards project or running costs (as opposed to contracting/ commissioning of services on behalf of the authority). For example, it was asked whether an organisation would be considered in scope if they received public funding but did not deliver ‘core’ functions as set out in the guidance. Similarly, one organisation also called for more clarity for public bodies who work in partnership and procure services from others.

There were also calls for more tailored or sector specific guidance and support to ensure different services understood the relevant requirements and how the UNCRC Act would apply to them:

“We agree that the definition is clear, however, we feel that [PVI] settings we work with… will require strong guidance and support as to how the Act will apply to them... By this definition it is clear that they are providing a service which is of public nature and therefore fit in the hybrid definition of public authority. It will be important to ensure they understand fully what is required of them in relation to the Act.” (Organisation)

Comments were made that a likely consequence of a lack of clarity at this section was that some organisations may spend a disproportionate amount of time trying to work out what (if any) of their work was in scope and covered/not covered by this duty.

Several respondents felt that the structure of this section was also in need of review and change. It was suggested it would be more logical for this section to precede the section on defining functions of a public nature. Better signposting in relation to what the section covers was also said to be needed at the outset.

Overall, in creating greater clarity around the definition of ‘public authority’, it was felt examples of organisations could be listed to help guide understanding e.g. hyperlinks to a list of named public authorities, in scope PVIs, etc. Providing a list of organisations that qualify as a public authority was one of the main suggestions to strengthen this section.

Other comments and suggestions

Links with the Human Rights Act (HRA) were not seen as helpful in this section. It was noted that the terms ‘core’ and ‘hybrid’ authorities, while used in the HRA, are not used in the UNCRC Act and could be confusing. Furthermore, it was suggested that opening with an overview of HRA caselaw could confuse important distinctions over terminology and applicability, particularly in relation to those who provide functions of a public nature.

Use of the word ‘Convention’ in this section to refer to the European Convention of Human Rights (ECHR) was also queried, since it was also used to refer to the UNCRC in other sections of the guidance. This was said to be confusing and consistency in terminology was advised.

Finally, there was concern that this entire section did not accurately reflect the law following the Supreme Court judgement (i.e. that any functions described must be conferred by legislation originating from the Scottish Parliament alone, rather legislation originating from the UK Parliament or from both) and would therefore require to be corrected. While the courts are the ultimate arbiter of the interpretation of legislative provisions, it was suggested that the guidance will play a role in guiding judicial understanding of the Act. It was suggested that it may be more user friendly to set out the relevant sections of the Act in this section, so that it was possible to cross reference.

Section 4.3.1: Definition of functions of a public nature

Q6. Section 4.3.1 ‘Definition of functions of a public nature’ is clear

	Number	Percent	Valid Percent
Strongly Agree	14	15%	17%
Agree	36	39%	43%
Neither agree nor disagree	8	9%	10%
Disagree	25	27%	30%
Strongly Disagree	0	0%	0%
Not Answered	9	10%	nil
Total	92	(n=92)	(n=83)

Just under two thirds (60%, n=50) of those who answered the closed question agreed or strongly agreed that Section 4.3.1 ‘Definition of functions of a public nature’ was clear, while just under one third (30%, n=25) disagreed. Again, this question attracted higher than average levels of disagreement across the consultation.

Reasons for support

Where people provided positive comments they were general in nature and simply affirmed respondents’ closed question responses, noting that the definition was clear and concise. The differentiation between public and private functions was also largely viewed as clear.

Caveats, concerns and reasons for disagreeing

The primary concern at this section was that greater clarity was needed over who would be included within the definition of providing ‘functions of a public nature’. As with the definition of ‘public authority’ it was felt that this needed to be made clearer to ensure it would be understood by PVIs, and to highlight that these functions could be delivered by PVIs (even where they are not receiving public funding):

“…the guidance needs to be clearer for PVIs as to what is meant by ‘functions of a public nature’. Giving specific examples may be helpful in this regard. It should also be clear that a PVI may be carrying out ‘functions of a public nature’ even if they are not publicly funded. Again, giving specific examples would likely be helpful in this regard. As it stands, the guidance quite simply does not provide sufficient clarity for PVIs as to when they will be regarded as carrying out ‘functions of a public nature’ and thereby subject to provisions of the Act.” (Organisation)

Specifically including a reference to the PVI sector within this section was suggested, as well as more guidance to identify and support ‘hybrid’ public authorities. Again, greater clarity of responsibilities when services are contracted out was requested.

There was some concern that this section could be misleading or misinterpreted, particularly where functions could be perceived as both private and public. Examples included where health care was provided by a private provider on behalf on the NHS, or where school transport and/or secure care were provided by private or third sector organisations on behalf of public authorities. It was felt that the guidance needed to be clearer that private sector organisations (both for profit and non-profit) might be subject to the section 6 compatibility duty.

As such, the provision of more diverse and detailed examples of ‘functions’ was something that respondents considered would be helpful, including examples of ‘functions of a public nature’ that may be undertaken in the private and third sectors^[1]. It was felt that examples that more clearly related to the functions or services which children and young people would be likely to engage with would also be helpful. Respondents noted that the guidance did not clearly explain Sections 6(6), 6(7), or 6(8) which were seen as key to defining ‘functions of a public nature’ - it was requested that reference to them be included (as well as case studies):

“The guidance needs to give further explanation that “functions of a public nature” can include actions/inactions by private/third sector organisations under contract or other arrangement with a public authority, such as provision of secure care or school transport. The guidance also needs to be clear that actions/inactions by private/ third sector organisations may be covered even if they are not publicly funded - for example non-publicly funded childcare or education. We understand that there are limits as to the level of detail and examples that can be included in statutory guidance - but further information on the content of sections 6(6), (7) and (8) is key to ensuring clarity.” (Organisation)

Similarly it was noted that some functions described in this section came under common law and, therefore, it may be helpful to include details about what ‘common law’ is and how it applies in the context of ‘functions of a public nature’^[2]. Highlighting any potential links, cross-over or interdependency with other statutory requirements was also suggested.

A small number of respondents suggested that more focus was needed on ‘activities’ rather than the type of organisation. Further clarification was requested on activities that would be considered to be ‘public in nature’, and how this should be interpreted in terms of an activity that they would ‘not normally do’:

“It is unclear as to what should be identified as ‘public nature’ and feels as though this could be left to up interpretation and confusion. This could result in those third sector organisations who fall within the scope of being a ‘public authority’ failing to understand whether their services/provision are identified as ‘public nature’ or not - and as such, not fulfilling their duties as is required.” (Organisation)

One organisation also asked that the guidance highlight the important message that protecting and upholding children’s rights is everyone’s responsibility, regardless of whether this additional legal duty applies.

There was also some overlap between the comments and suggestions given here and at Q5 above, specifically:

• that this section would be benefit from coming after the ‘definition of a public authority’ section; and
• focusing on interpretation of the HRA at this section may risk creating confusion as the HRA and the UNCRC Act are drafted in different ways, with the UNCRC Act drafted to overcome challenges experienced by the HRA.

Finally, comments were made that the language at this section would benefit from being more accessible and user friendly (noting, however, that the length and complexity was less of an issue here). Overall, more work to redraft this section was said to be necessary. Firstly, to ensure a clear understanding of public functions and how the duty applies to private entities acting on behalf of public authorities and secondly, to ensure it meets the needs of the third sector as well as core public authorities.

Section 4.4: Explanation of the duties on public authorities in Part 2, section 6

Q7. 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

	Number	Percent	Valid Percent
Strongly Agree	9	10%	11%
Agree	41	45%	50%
Neither agree nor disagree	13	14%	16%
Disagree	15	16%	18%
Strongly Disagree	4	4%	5%
Not Answered	10	11%	nil
Total	92	(n=92)	(n=82)

Of those who answered the closed question, 61% (n=50) agreed or strongly agreed, while 23% (n=19) disagreed or strongly disagreed.

Reasons for support

Several respondents felt that this section was clear and well explained. In particular, respondents welcomed the statement that nothing in the guidance should be interpreted as preventing a public authority from acting compatibly, and the encouragement that public authorities should act compatibly with the UNCRC, even in functions outwith the scope of the section 6 duty. Indeed, it was suggested that earlier sections of the guidance could also be improved with this inclusion:

“We welcome the inclusion that states nothing in the guidance should be interpreted as preventing a public authority from acting compatibly when carrying out functions relating to children. This adequately reflects the Scottish Government’s commitment to establishing a culture of children’s rights across all functions of government and public administration, an integral aspect of what UNCRC incorporation hopes to achieve in Scotland.” (Organisation)

Some respondents felt that the guidance indicated that the UNCRC is a “floor and not a ceiling”. They felt the guidance would encourage organisations to go beyond the minimum standards required:

“It is encouraging to see that the guidance sets out the potential of ‘public authorities’ going beyond the minimum standard of compliance, emphasising that the UNCRC sets out minimum standards but that service providers should, where possible, strive to go beyond this, including on devolved matters that are not legislated for as part of this Act.” (Organisation)

Several respondents agreed that UNCRC rights and duties should be stressed as a minimum standard rather than a maximum compliance standard, and suggested that public authorities should be encouraged to strive to act compatibly across all service provision, including where this applies to reserved policy areas which are outwith the Scottish Government’s control. Given its importance, it was suggested this could be given clearer emphasis.

The summary at the end of the section (i.e. Summary of coverage in legislation) was seen as useful, however, it was suggested that it may be helpful to include a signposting/introductory summary at the outset. Similar summaries for other parts of this section (and throughout the guidance) were also suggested.

Caveats, concerns and reasons for disagreeing

The main concerns at this section were related to the very technical and legal language and concepts used - respondents commented that it would be difficult for those without any legal knowledge or expertise to interpret. In particular, it was felt that readers without legal expertise would not fully appreciate the devolved or reserved functions, primary and secondary legislation, functions which are rooted in statute or common law, or where and how to access case law. It was felt that the inclusion of such legal issues, and the way these had been described would mean that organisations/practitioners may need to seek legal advice to understand the parameters of the their duties, while front-line workers and lay readers would find this section largely inaccessible. It was suggested that the whole section would therefore benefit from using more plain English:

“While the guidance is clear to a qualified legal professional the broad audience at whom the guidance is aimed will not necessarily be fully appreciative of the concept of devolved functions nor the distinction between primary or secondary legislation emanating from either Scottish or UK parliaments. The explanation around the applicability of the duty to amending legislative provisions is particularly intricate and while the guidance does make a good attempt at providing clarity there is still thought to be scope for further explanation.” (Organisation)

Some respondents also called for more direct practical support (such as a central helpline) to be made available to support the guidance in this regard, as well as guidance on how public authorities could access legal advice if needed. The likely resourcing implications for public authorities’ in-house legal teams were also noted should they be required to support the interpretation/implementation of the guidance.

There were comments regarding the continued lack of detail related to the functions which were both in and out of scope, as well as the scope and application of the section 6 duty to different functions. Clarity around reserved and devolved matters was encouraged (with potentially a list of all reserved areas that are excluded being provided for further clarity and detail). Some respondents felt that examples of legislation and functions which are subject to the UNCRC Act should also be included to aid understanding.

It was also felt that the guidance could be clearer on how the UNCRC Act interacts with other legislation applicable to services and sectors (including social work legislation which predates the Scottish Parliament). There were calls for illustrative examples, a clear list of functions performed by local authorities that fall within the scope of the UNCRC Act, and for tailored sector specific guidance to be produced:

“In many instances a patchwork of UK and Scottish Acts exist and operate concurrently within a single service area… the Scottish Government must urgently undertake an exercise to identify public authority functions which are in and out of scope of the compatibility duty, in order to inform detailed, sector-specific guidance to support councils (and other public authorities) to understand when their legal duties will and will not apply, including in areas where particular complexity and risks are foreseen.” (Organisation)

Some respondents requested greater emphasis that public authorities should take a children’s human rights approach in every aspect of their work. This was seen as a primary principle, which should be reiterated throughout the guidance and would support public authorities to be compatible with the UNCRC requirements.

As statutory guidance only explains what is covered by the Act and, as a result, focuses on legal proceedings rather than other avenues for remedy, one organisation noted that this section could be misinterpreted as suggesting that any incompatible action or omission under the UNCRC Act would result in a public authority progressing directly to court proceedings. Instead, they recommended that this could be improved by providing practice examples of how an organisation may deal with a potentially incompatible act, ranging from a child friendly complaints process through to court proceedings.

Another organisation suggested that section 4.4 was confusing and that it was not always clear when the section 6 duty would apply and when it would not.

Overall, while the principles of this section were welcomed (especially the encouragement for public authorities to strive to go beyond the minimum requirements), it was still seen as being too lengthy, difficult to understand, too abstract and as having the potential to result in misunderstanding or misinterpretation. One organisation also raised a specific concern that the complexity of this section would mean that it would not be understood by children and young people which in turn might mean that they would be unaware of where their rights could be exercised.

Annexes A.1 - A.5: Clarification of conceptual aspects of the UNCRC

Q8. Annexes A.1 - A.5, ‘Clarification of conceptual aspects of the UNCRC’ are clear

	Number	Percent	Valid Percent
Strongly Agree	14	15%	17%
Agree	42	46%	51%
Neither agree nor disagree	5	5%	6%
Disagree	21	23%	25%
Strongly Disagree	1	1%	1%
Not Answered	9	10%	nil
Total	92	(n=92)	(n=83)

Of the respondents who answered this closed question, around two thirds (68%, n=56) either agreed or strongly agreed that Annexes A.1 - A.5: ‘Clarification of conceptual aspects of the UNCRC’ were clear. However, a quarter (26%, n=22) either disagreed or strongly disagreed.

The main consultation document did not seek any qualitative feedback in relation to this question, however, several respondents provided comments on this, either because they submitted responses by email and did not follow the questions as set out in the main consultation document, or via clearly attributing comments within responses to other questions. Many very specific drafting comments were received in relation to Annex A which were extracted and provided to the Scottish Government. Only a few were more general and are outlined here.

Mixed views were expressed about Annex A and each of the sub-sections. Some respondents felt that the information at Annex A was helpful and clear:

“This section is extremely helpful and easy to read and understand. We particularly like the use of examples, such as those provided around discrimination (p.23), and infographics, such as that provided in A2 ‘Human rights obligations’ (p.26). It would be helpful to have more of these and make them more prominent.” (Organisation)

Others, however, felt that some sections were technical and legalistic, could be open to misinterpretation, and would benefit from greater clarity and contextualisation. In particular, the evolving capacities section needed to provide clarity that a child’s capacity is not dependent upon age. Respondents also felt this section was “vague” and required more detail, including information on how public authorities should interpret and deal with a child/children’s capacity, and information about what support exists, or how professionals can support children and young people to have their views heard. A few respondents noted the lack of consideration of children with additional support needs, the barriers they face to exercising their rights, or how to support differing communication needs at this section, and felt this should be addressed.

Further, an individual suggested that separating the guiding principles from the concept of evolving capacities was inappropriate and risked undermining children’s rights under the UNCRC.

It was also suggested that support to develop shared learning would be useful, and that the guidance at this section could provide support on how to balance the rights of different children (a suggestion offered by various respondents across different sections):

“This section would be a good place to explore further how practitioners can approach balancing children’s rights. The interconnectedness and indivisibility should be more greatly emphasised here, allowing for public authorities to get a sense for the types of tensions that might arise when applying UNCRC principles in practice.” (Organisation)

Annexes B.1 - B.4: Sources to guide interpretation

Q9. Annexes B.1 - B.4 ‘Sources to guide interpretation’ are useful

	Number	Percent	Valid Percent
Strongly Agree	10	11%	12%
Agree	48	52%	59%
Neither agree nor disagree	19	21%	23%
Disagree	4	4%	5%
Strongly Disagree	1	1%	1%
Not Answered	10	11%	nil
Total	92	(n=92)	(n=82)

Of the respondents who answered this closed question, nearly three quarters (71%, n=58) either agreed or strongly agreed that Annexes B.1 - B.4: ‘Sources to guide interpretation’ were useful. Only a handful of respondents (6%, n=5) disagreed or strongly disagreed. Again, no qualitative feedback was sought at this question, however, some comments were provided. Most of the comments were highly specific and outlined suggested drafting edits to improve accuracy and clarity (these were extracted and provided to the Scottish Government under separate coverage).

Generally, respondents considered this section to be interesting and useful, providing a good basic overview and understanding for those with less background knowledge in this area. It was also suggested that ‘rights holders’ should be made aware of this information, albeit in a more accessible way.

Annex C: Framework for Reviewing Compatibility (s.6 duty)

Q10. 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

	Number	Percent	Valid Percent
Strongly Agree	9	10%	11%
Agree	42	46%	51%
Neither agree nor disagree	16	17%	19%
Disagree	14	15%	17%
Strongly Disagree	2	2%	2%
Not Answered	9	10%	nil
Total	92	(n=92)	(n=83)

Of those who answered the closed question, nearly two thirds (62%, n=51) either agreed or strongly agreed that Annex C, ‘Framework for Reviewing Compatibility (s.6 duty)’ was presented in an accessible manner, while 19% (n=16) disagreed or strongly disagreed.

Reasons for support

This Annex was considered to be “very detailed”, “comprehensive”, “very thorough”, and “very useful”, with the style and language said to be clear and accessible:

“In terms of presentation, the Framework for reviewing compatibility is a useful, practical resource which clearly sets out what is expected of practitioners as part of their decision-making.” (Organisation)

The flowchart was considered to be particularly clear and accessible, while the summary tables highlighting UNCRC articles that are fully or partially reserved, and hyperlinked checklists were seen as particularly useful. It was suggested, however, that:

• The flowchart could be provided first (at Section C.2, Step 2);
• A link to the tables could be added earlier in the guidance (at Section 3.3 outlining ‘carved out’ articles); and
• That the various tools (from the hyperlinked table) could be included as appendices and/or that links to these could be made available on the Scottish Government website.

The Framework was considered to be a useful starting point for those with less awareness and experience of children’s rights. It was also considered to have been written in such a way as to be accessible to those less familiar with children’s rights.

The emphasis placed on gathering the views of children and young people was welcomed, although it was suggested that the guidance needed to be firmer in encouraging direct engagement. It should also highlight the individual steps and stages where input and engagement should be undertaken. It was felt that further clarification would be helpful to ensure that engagement happens consistently. Furthermore, it was suggested that more explicit links to the fulfilment of Article 12 could be included here, and that resources and guidance on how to meaningfully include children’s views would be beneficial.

Several other elements were highlighted as positive, although each was typically mentioned by one respondent:

• The Framework would be useful for services to review compatibility for existing functions and any future planned or proposed functions;
• The consideration given to keeping up with case law was said to be useful;
• The ‘proportionality of impact’ section was welcomed; and
• The circular nature of the Framework was welcomed, as this supported the view that “a child rights approach is a continuous and holistic process.” (Organisation)

The introductory paragraph was also considered to be helpful, and it was suggested that this could be used as a model for other sections:

“In particular the introductory paragraph gives a helpful indication of how to use the rest of the section. This should be replicated for other sections in the guidance.” (Organisation)

Caveats, concerns and reasons for disagreeing

A range of caveats and concerns were raised by those who supported the Framework. Even those who disagreed at the closed question expressed support for the Framework in principle at the open comments - their disagreement was based largely on accessibility (as per the question asked) rather than an objection to the provision of the Framework itself.

The main issues that respondents felt needed to be addressed included:

• Making the Annex more user friendly;
• Setting out more information to provide greater clarity and to aid understanding;
• Setting out how the Compatibility Review Framework would interact with Child Rights Impact Assessments (CRIAs); and
• Concerns around capacity and resourcing.

Further consideration of each of these issues is provided below.

More user friendly

The main concern was that this Annex was “very lengthy”, “wordy”, “confusing and impractical”, with respondents suggesting it could be more concise, streamlined and further developed to be more user friendly and accessible. It was suggested that the language needed to be simplified with greater use of plain English. A few respondents suggested that a list of practical questions to consider in relation to compatibility would have been more helpful:

“Annex C needs to be in plainer language and more concise to be accessible. A more concise, streamlined Framework which relies less heavily on long sections of text would likely be more user-friendly, accessible and practically manageable for local authority professionals to draw upon in this context.” (Organisation)

A range of more specific suggestions were made, including that a bullet-point summary outlining the 3-step process would be helpful towards the start of this section, and that an infographic and/or flowchart might be helpful in assisting understanding of the section 6 duty and to aid decision-making (and to replace some of the text). Others suggested that an example or usable template or pro-forma for the compatibility assessment would be useful.

A few respondents felt that the need to move back and forward between the Annex and other sections of the guidance distracted from the content, with one organisation suggesting that greater use of hyperlinks might help.

There were also concerns that the Framework could be overlooked if it was included as an Annex. It was suggested it needed more prominence, either by including the information within the main body of the guidance, or by providing this as a separate, complementary document (although the need to reference definitions and explanations outlined in other parts of the guidance would need to be considered).

One organisation felt that the presentation of this Framework as an optional process alongside signposting to the ‘Getting Ready for UNCRC Incorporation Framework’ could be confusing as they did not fulfil the same function. Another organisation recommended exploring the options for digital formats, e.g. digital versions of key tools and resources.

Content/more information needed

A common concern was that respondents still did not fully understand the section 6 duty and what functions were in and out of scope. It was felt that the Framework needed to be supported by clearer information on who would be considered a ‘public authority’ and what functions would be considered ‘functions of a public nature’ so that organisations know they need to follow the Framework. Respondents were concerned that the current uncertainty could lead to different interpretations and inconsistent application:

“…whilst the draft statutory guidance being consulted upon provides useful information which will be valuable to councils and other public authorities, it fails to provide adequate clarity on the scope of compatibility duty and how the legislation will apply in practice across local authority functions and powers - it remains crucial that this clarity is urgently provided to support councils with implementation of the legislation.” (Organisation)

It was suggested that a ‘once for Scotland approach’ could be taken to identify ‘core’ public authorities and their private and public functions to remove duplication of effort and varying interpretations. It was felt that this provision may also assist ‘non-core’ public authorities to better understand and navigate this assessment. Others, however, felt that the guidance should recommend that organisations (including those in the PVI sectors) use the compatibility test widely across all their work to provide reassurance and compatibility with the UNCRC Act. It was also stressed that the Framework should continue to promote the maximalist approach whereby organisations are encouraged to exceed the minimum standards:

“We note that the Compatibility Review Framework begins with an assessment of whether or not the relevant function is within the scope of the UNCRC Act and then considers compatibility with the UNCRC requirements. In line with its commitment to a maximalist approach, the Scottish Government should insert a line encouraging organisations to use the compatibility test widely across their work to provide reassurance that UNCRC obligations are always being met. This would support and operationalise the Scottish Government’s expectation that public authorities should act compatibly across all areas of their work, whether or not a specific function falls within or outside the scope of the UNCRC Act. If organisations have satisfied themselves with UNCRC compatibility first, then this reduces the pressure on determining whether or not the relevant function is within scope.” (Organisation)

A few respondents suggested that more information and examples were needed on implementation and what this looks like in practice. It was suggested examples could come from Scotland and internationally.

A range of other topics where respondents felt that more information, clarity or detail was needed are outlined below. It should be noted, however, that each topic was mentioned by just one or two respondents:

• More was needed to fully understand devolved and reserved matters and how to use the Framework in this context. It was noted that identifying reserved functions may be a significant task which would require skill and capacity;
• Greater clarity was needed around what qualifies the compatibility reviewer to meet the requirement of having an understanding of children’s rights and the UNCRC;
• Include more focus or examples of “high risk” areas where practitioners may not realise their decisions apply to or impact children, and where they would therefore have to consider the UNCRC;
• More information needed on commissioned services, particularly in relation to their failure to act compatibly;
• Assessing the impact on children and their rights should be more prominent;
• Include more links to in-depth information on articles, which need to be kept up to date as case law evolves; and
• The way the Framework was set out could reduce compliance to a tick-box exercise.

Interaction with CRIA

Several respondents sought clarity over how the Compatibility Review Framework would add to, and interact with, the existing tools available to ensure compliance with children’s rights. In particular, Child Rights Impact Assessments (CRIA) were highlighted. Respondents felt that the guidance needed to provide more information about when different tools should be used:

“We would welcome the guidance offering further clarity on the relationship between the Compatibility Review Framework and CRIA. Public authorities must be supported to understand the similarities and distinctions between the two - and when they should use a CRIA and when they should follow the Compatibility Review Framework.” (Organisation)

There were also concerns that the Compatibility Review Framework may represent duplication with the CRIA.

Capacity and resourcing

Respondents were concerned about capacity and resources, both to be able to read and interpret the Framework, and to undertake the review:

“…the Framework as currently drafted is very lengthy and includes a significant amount of text. It is anticipated that local authority professionals and teams, who are often subject to significant capacity, resource, and workload pressures, within the context of severe budgetary pressures as well as significant legislative and policy change across a wide range of areas, may struggle to use this in practice. A more concise, streamlined Framework which relies less heavily on long sections of text would likely be more user-friendly, accessible and practically manageable for local authority professionals to draw upon in this context.” (Organisation)

It was suggested that the Compatibility Review Framework represented a large additional exercise to be undertaken. Indeed, it was noted that the Framework was not a three-step process as stated in the guidance, as each stage involved various sub-steps. As such, capacity and resourcing issues were highlighted in relation to conducting compatibility reviews, with respondents suggesting that additional resources may be required to achieve this.

The fact that legal advice was likely to be necessary also raised concerns that this would put strain on existing resources and capacity. The need for this requirement also meant that the compatibility review was perceived as a highly complex process for practitioners, particularly where they were less familiar with working with statutory frameworks:

“…we need to consider how accessible ‘seeking legal advice’ is on a continual basis when assessing compatibility of different functions (p.49). This would come at a cost to organisations and additional guidance would be beneficial, particularly in the early stages of implementation when there could be uncertainty about compliance and lack of case law on which to draw.” (Organisation)

Understanding of the Compatibility Review Framework

Q11. I clearly understand how to use the Compatibility Review Framework

	Number	Percent	Valid Percent
Strongly Agree	4	4%	5%
Agree	36	39%	44%
Neither agree nor disagree	28	31%	34%
Disagree	13	14%	16%
Strongly Disagree	1	1%	1%
Not Answered	10	11%	nil
Total	92	(n=92)	(n=82)

Just under half (49%, n=40) of the respondents who answered the closed question agreed or strongly agreed that they clearly understood how to use the Compatibility Review Framework, while 17% (n=14) disagreed or strongly disagreed.

Reasons for support

Respondents generally found the Compatibility Review Framework to be instructive, helpful, logical and practical. It was felt that it provided lots of information around what it is and when to use it.

Again, the flowchart and table format used (at Section C.2.2) were considered effective and helpful:

“The Framework itself presents several instructive components across all three sections. The inclusion of question lists, checklists and flow charts will all support organisations to make effective use of the Framework and to deliver clear actionable outcomes.” (Organisation)

The non-prescriptive nature, and ability to adapt the Framework locally was again supported. It was felt that this allowed public authorities to look across all aspects of planning, delivery and governance to identify and prioritise where any improvement focus was required.

A few specific elements of the Framework were also identified as positive and supportive (although these were only mentioned by one respondent each):

• It usefully follows similar assessment processes in other areas (e.g. Island Community Impact Assessments);
• It works in combination with other resources, such as the ‘Getting Ready for UNCRC Incorporation Framework’, which will support understanding and practice; and
• The clear messaging “about the importance of keeping policies and measures under review in terms of evidencing implementation of UNCRC in practice and new child’s rights development” was welcomed.

Caveats, concerns and reasons for disagreeing

Many of the concerns raised here were consistent with issues outlined above at Q10, with some respondents referring back to their earlier feedback.

One of the most commonly cited issues was again the perceived overlap and confusion around use of the Compatibility Review Framework and the Children’s Rights Impact Assessments (CRIA) and Children’s Rights and Wellbeing Impact Assessment (CRWIA). Respondents sought further information about how these assessments and frameworks were intended to work together, and clarity over when each tool should be used.

There were, again, concerns that undertaking the compatibility review may be time and resource intensive, with respondents suggesting that capacity and resourcing issues may be challenging. It was also noted that it was likely that organisations would require additional information, advice, and potentially legal advice, which would all have resource and cost implications:

“…application in specific situations and services in a context of public sector pressures and staffing crisis will be a challenge, not least because it is an additional highly detailed piece of work, which will take a significant amount of time and effort to complete, however useful in nature.” (Organisation)

Also consistent with concerns expressed above, this section was considered lengthy and unclear, particularly for those without a legal background. There were calls for this to be simplified and streamlined, to be made more accessible, and to include more graphic representations.

There were also concerns that the Framework may by inaccessible to, or would not be well understood by, ‘non-core’ public authorities. It was suggested that training and pro-active support may be required for the PVI sector in particular:

“Our understanding of this is that it would be for local and national government to complete the CRF [Compatibility Review Framework] if this is not the case and the wider public authority definition applies, it will be necessary for PVI settings to be given appropriate training and guidance to ensure they have a clear understanding of their responsibilities.” (Organisation)

Respondents were also concerned about the status of the Framework (i.e. whether the completion of a compatibility review was mandatory or optional). They felt that it could be open to interpretation in relation to when a review would be needed, how it would be used in real situations and by whom, whether a full or partial review was needed and in what circumstances, and how comprehensive information and understanding could be obtained without a full review. It was suggested that greater clarity could be provided over who the Framework applies to; who should be involved, and what the responsibilities are at different levels and in different sectors; how and when to use the Framework; timescales for use; and at what levels within an organisation it should be used. There were also questions over whether the Framework could/should be used to cover multiple services or whether separate reviews would be needed in such circumstances.

One organisation advocated for a consistent approach to be adopted, while a few respondents called for illustrative worked examples or case studies which would be helpful and aid understanding:

“This section could be improved with the inclusion of case examples to support organisations to have a clearer understanding of the ways in which they may respond to the different elements of the Compatibility Framework. An example of how organisations work through the decision-making process would be helpful.” (Organisation)

A range of other concerns or suggestions were put forward in relation to the Compatibility Review Framework, by just one or two respondents each:

• This section should recognise the importance of the views of children and young people, their families, and others working directly with children and young people in ensuring that evaluations and decisions are taken on a secure evidential basis;
• The use of a tick-box exercise was considered inappropriate;
• It should focus on more practical questions and issues;
• It could set out key questions to focus on purpose and to help guide a review in more practical terms;
• In relation to the rights of Gaelic-speaking children and young people, it was recommended that additional advice be created to support a wider understanding of the implications of Articles 28, 29, 30 and 31;
• Professionals will require national and local guidance that is easy to interpret and put into practice to ensure monitoring and review of the implementation of the UNCRC; and
• Consideration should be given to supporting public authorities to promote and facilitate shared learning.

General feedback on Part 2 Guidance

Accessibility

Q12. Overall, the guidance is presented in an accessible manner, e.g. the content, style, and length make this a user-friendly and practical resource

	Number	Percent	Valid Percent
Strongly Agree	7	8%	8.5%
Agree	27	29%	33%
Neither agree nor disagree	24	26%	29%
Disagree	17	18%	21%
Strongly Disagree	7	8%	8.5%
Not Answered	10	11%	nil
Total	92	(n=92)	(n=82)

Those who answered this closed question provided more mixed views compared to other questions. Less than half (41.5%, n=34) agreed or strongly agreed that the guidance was presented in an accessible manner, while over a quarter (29.5%, n=24) disagreed or strongly disagreed. Indeed, this question elicited the highest number of respondents who selected ‘strongly disagree’.

No qualitative feedback was sought at this question specifically, as an open question was asked at Q14 to capture more general feedback on the Part 2 Guidance. While a few responses were provided specifically in relation to this question (via responses submitted by email), this feedback was collated and presented at Q14 below.

Improved understanding

Q13. Overall, the guidance supports an improved understanding and ability to fulfil the duties under Part 2 of the Act

	Number	Percent	Valid Percent
Strongly Agree	8	9%	10%
Agree	45	49%	55%
Neither agree nor disagree	15	16%	18%
Disagree	11	12%	13%
Strongly Disagree	3	3%	4%
Not Answered	10	11%	nil
Total	92	(n=92)	(n=82)

Of those who answered this closed question, nearly two thirds (65%, n=53) agreed or strongly agreed that the guidance supports an improved understanding and ability to fulfil the duties under Part 2 of the Act, while 17% (n=14) disagreed or strongly disagreed.

Again, no qualitative feedback was sought at this question, and any comments provided were incorporated in the results at Q14 below.

Q14. Are there any areas where you think the Part 2 Guidance could be improved?

Due to the broad nature of this question, a wide range of comments were provided, and while some general themes and topics were outlined, there was also a large volume of more nuanced or unique feedback.

Most of the common themes tended to reiterate issues and concerns that had been raised across the earlier questions in the consultation.

The main issues were focused on:

• The accessibility of the Part 2 Guidance;
• The need/desire for the guidance to be clearer and more explicit, particularly in relation to which organisations and activities would be considered in scope;
• Concerns outwith the scope of statutory guidance consultation, such as capacity, resourcing and funding to implement the UNCRC requirements; and
• Suggestions for the Compatibility Review Framework.

Accessibility issues

The main issue noted by respondents was that the guidance was lengthy, contained too much technical and legal terminology, took too long and/or was difficult to read, and was not user friendly. In particular, it was felt that it may not be accessible or engaging for lay readers or any practitioners who are new to the UNCRC and/or who do not have a legal background:

“…it is a difficult read. It requires several reads and careful study to understand the information being relayed. Although helpful and clear in most areas it is lengthy and uses legal language in parts… the impact is that a full understanding of the guidance requires significant background and technical knowledge and close study.” (Organisation)

It was recommended that the guidance should be reviewed, with sections (and the overall order of sections) being restructured and streamlined to make it more accessible and user friendly. One suggestion was to adopt a ‘clustering approach’ to break children’s rights down into more manageable chucks. Several suggested that a summary document (or series of section summaries), plain English or easy read versions would be helpful, while a few respondents again proposed moving the Compatibility Review Framework (currently at Annex C) nearer the beginning of the guidance or placing it in a supplementary document.

There were also calls for the use of more visual information, such as infographics, flowcharts, and timelines. One organisation also preferred that hyperlinks were used within the text (rather than footnotes), both to link the reader automatically with other supporting information within the guidance itself, and to link with other documents, reports, Acts, etc.

Need to be more explicit

Generally, respondents felt it was unclear who the guidance was aimed at, and there was a concern that many may not see the relevance of it to themselves or their role. It was also felt that the guidance was more strategic in nature, while respondents wanted more specific, directive, operational and implementation level guidance focused on the practical side of how to uphold children’s rights.

It was suggested that more practical examples and illustrative case studies were needed throughout. It was felt these would be useful in adding context and supporting understanding among readers.

In particular, respondents wanted greater clarity around who the guidance was for, who and what would be considered a ‘public authority’ and ‘functions of a public nature’, the scope and applicability of the section 6 (compatibility) duty, and around multi-agency/partnership working and commissioned services. Again, it was felt that examples would be helpful in this respect. More sector specific guidance and advice was also requested for different sectors and/or those with more limited opportunities to work directly with children:

“It is not clear who the guidance is for. This could be because the guidance is written with all public authorities in mind, however, the generic nature of the document, and lack of specificity about how to put into practice aspects of the guidance, means that the guidance is neither user-friendly, nor a practical resource. More bespoke guidance for specific groups, e.g., teachers, social workers, police, etc. would be beneficial, as currently the guidance isn’t helpful for any groups.” (Organisation)

Further localised and sector specific guidance was also said to be required in order to contextualise the section 6 duty in particular.

Two organisations highlighted the concern that some sections could be open to interpretation and may, therefore, require further clarity. Another suggested that more practical support would be helpful, such as a UNCRC helpline, although they acknowledged that this may be difficult due to staffing and costs.

Capacity, resources and funding

Concerns about capacity were again raised by a few respondents, and it was felt that public authorities would need funding and resources in order to fully implement all UNCRC requirements:

“Scottish Government need to provide funding and resources to support UNCRC incorporation across all our communities. Local authorities will find it difficult to carry out the duties without the guidance, support and resources to make that happen.” (Organisation)

The need for legal advice was also perceived as a potential cross-cutting logistical barrier for organisations, particularly for those in the third sector and small charities.

Compatibility Review Framework

Consistent with feedback provided at Q11 and Q14 above, a few respondents highlighted issues with the Compatibility Review Framework. Respondents reiterated that this would benefit from the inclusion of a clear explanation of who needs to apply this and when, and again suggested that a national approach be taken for some services to avoid duplication and variation.

It was also suggested that, while the Framework recommends consideration of involving parents/carers in relation to evolving capacity, this could be extended to greater engagement within the compatibility review process:

“Regardless of evolving capacities, we believe parent-carer engagement has an important role to play as part of the compatibility review process. There may be circumstances in which parent-carers can provide specific perspectives and insights on how services are or are not compatible with children’s rights. They may also be able to offer helpful suggestions for future processes.” (Organisation)

Other comments and suggestions

Several respondents advocated for the provision of additional guidance to be developed for children and young people, and those who support them, so that they have a clear understanding of the Act’s intentions, how it should be implemented, and their rights to seek redress. As such, an alternative, suitably tailored and more accessible format was said to be required for this purpose:

“Children and their families have a right to be able to access this information and as such it requires to be in a more accessible format. Children need to know “what does this mean for me?”” (Organisation)

It was suggested that the Scottish Government needed to acknowledge, address and strengthen the guidance in relation to specific groups of ‘at risk’ children and young people. This included the detail given around the need for public authorities to give specific consideration to particular groups of children when carrying out their duties under the Act, and the need to consider groups beyond those with protected characteristics. Specific groups were highlighted as requiring further consideration, including girls and children affected by parental imprisonment. One suggestion was to use the term ‘rights at risk’ and provide an indicative, non-exhaustive list as to which groups of children may fall within this category, while another preferred that rights issues impacting girls be specifically highlighted throughout.

Respondents also sought other key information that was outwith the scope of the statutory guidance consultation, including:

• What structures will be put in place to ensure that children and young people can access independent support;
• Where families and carers can access information to support a child seeking legal remedy;
• How professionals can request support to establish children’s views and avoid escalation of disputes; and
• That legal support will be made available to all children and young people, including specialist provision for those with additional support needs.

In particular it was suggested that the guidance needed to make provisions for independent advocacy and non-instructed advocacy to help protect and defend children’s rights, and include a plan on how children will be supported to fully express their views and be involved in decisions that affect them.

Several respondents called for greater coverage and guidance on 1) how to balance rights (i.e. where the rights of one child may need to be balanced with the rights of another child/group of children); 2) the weighting of children and young people’s views and parental views; and 3) on conflicting priorities between children’s rights and budgetary pressures:

“Further complications can arise when the rights of one child conflict with the rights of another child or a group of children. The draft guidance provides no advice or support on how such a balance should be struck in cases where different articles might be engaged or on the application of the general principles.” (Organisation)

It was considered important that terminology was consistent throughout, and in particular, that the UNCRC was referred to in a consistent manner - it was noted that UNCRC, the Convention, and International Convention had all been used but that references to ‘the Convention’ or ‘Internation Convention’ could be confused for other conventions. Similarly, it was noted that references to the Children and Young People's Commissioner Scotland also varied, and that references to ‘the Commissioner’ could again be confusing and relevant to different organisations.

A few respondents urged the Scottish Government to ensure the guidance is updated regularly to reflect evolving case law so that public authorities are aware of how the Act is being interpreted and enforced.

A wide range of other comments and suggestions were provided by just one or two respondents each, including the perceived need to:

• Ensure that the guidance stresses the need for children’s rights to be upheld to the maximum extent possible;
• Provide a clear understanding of what public authorities must comply with in advance of the Act coming into force. It was noted that existing best practice exists internationally which can be drawn upon;
• Include explicit statements where information is not yet known or available to ensure that readers understand the limitations of the guidance at this stage and that they have not misunderstood the guidance. It was also felt that information was needed about how organisations should prepare in such circumstances;
• Reference in Part 2 that the non-statutory guidance in relation to this Act included guidance on empowering children and raising awareness of the UNCRC and children’s rights. Clear accountability, reporting, and measuring of awareness would support these aspirations;
• Ensure disaggregated data is collected and used when reporting on children so that they are not reduced to a homogenous group;
• Give clarity on whether reasonableness and proportionality will be defences to any legal action raised against public authorities based on the Act;
• Be realistic around expecting all organisations to keep up to date with relevant emerging case law. It was suggested that organisations were likely to need support in this, perhaps from the Children and Young People's Commissioner Scotland;
• Include “additional information around the practice to be adopted and the interconnection when assessing the impacts on children and young people in the decision-making processes that are part of other duties and legislation such as the Equality Act and Public Sector Equality Duty.” (Organisation); and
• Make clear the connection between children’s and women’s human rights, as well as the link between the UNCRC and related international treaties (including the Convention on the Elimination of Discrimination against Women (CEDAW)).

A few respondents also commented on, or made suggestions related to the consultation document and process at this question. These responses are outlined in the ‘Other comments’ chapter towards the end of this report.

Support for the guidance

A few respondents used this question to outline general support for the guidance, it’s content, accessibility and flexibility to fit different sectors and organisation types:

“The guidance is written in a manner that is easy to understand, very detailed, with excellent guidance notes for use of the Framework and the guidance links to the appropriate relevant documents as necessary.” (Organisation)