Embedding children's rights: position statement

Introduction

i. Background to and Purpose of this Report

The United Nations Convention on the Rights of the Child (UNCRC) sets out the civil, political, economic, social and cultural rights to which all children are entitled, regardless of their circumstances. The UK ratified the UNCRC in 1991. All States parties are obliged to submit regular reports to the UN Committee on the Rights of the Child (UN Committee) on the steps they have taken to put the Convention into effect and on progress in protecting and promoting children's rights in their countries.

The UK was last examined by the UN Committee, on its compliance with the UNCRC in May 2016. Following from this, in July 2016, the UN Committee published its Concluding Observations for the UK, including the devolved administrations: a list of around 150 recommendations relating to a wide range of policy areas. The Progressing the Human Rights of Children in Scotland: A Report 2015-2018 (2018) included an update on progress made in taking forward the Concluding Observations as these relate to Scotland.

The next constructive dialogue session with the UN Committee is due to take place in May 2023. As part of the required reporting for this examination, in February 2021, the UN Committee published its List of Issues Prior to Reporting (LOIPR) for the United Kingdom of Great Britain and Northern Ireland. The LOIPR included a request for detailed information on measures taken forward to further protect and promote children's rights across a range of policy matters, including in relation to child poverty, health, and education. The LOIPR was informed by the views of children's rights stakeholders across the UK.

The Scottish Government contributed to the UK-wide response to the LOIPR. The response, which included an update on relevant activity across all areas of the United Kingdom, was collated by the UK Government as the State party and forwarded to the UN Committee in June 2022.

The Scottish Government also committed to publishing a standalone Position Statement providing further detailed information relevant to devolved matters in Scotland. Standalone Position Statements prepared by the Scottish Government do not form part of the formal documentation submitted to the UN, nor are they part of the formal reporting process. Rather, they are intended to assist the Scottish Parliament, civil society stakeholders, and other interested parties in engaging with treaty reporting processes and scrutinising the Scottish Government's human rights record. This standalone Scottish Position Statement also replaces this year's progress report on our Progressing the Human Rights of Children in Scotland: Action Plan 2021 to 2024.

ii. Layout of Report

Chapter One of this Position Statement describes our approach to children's rights in the context of the COVID-19 pandemic. The remainder of the document follows the established format for reporting to the UN Committee, with individual chapters reflecting the cluster groupings of the articles of the UNCRC^[1]. Each chapter includes a summary of progress made in furthering children's rights in Scotland from 2016 to present (the reporting period). The updates broadly reflect the policy areas highlighted by the UN Committee in its LOIPR, although they do not form part of the formal response to the Committee. The document also responds to a small number of issues raised by Scottish children's rights stakeholders. Annex B sets out the Parts I and II questions from the LOIPR relevant to Scotland. In addition to this, Annex A provides the Scottish Government contribution to the State party response to Part III of the LOIPR, a request for specified disaggregated data across a range of policy matters.

The remainder of this Introduction provides a high-level overview of the human rights and children's rights framework and oversight in Scotland.

iii. Human Rights in Scotland

Under the constitutional settlement, which has applied since 1999, human rights are, for the most part, devolved to the Scottish Parliament. The Scotland Act 1998 requires that all Scottish Parliament legislation and all Scottish Government decisions and actions must be compatible with rights set out in the Human Rights Act 1998 (HRA) and derived from the European Convention on Human Rights (ECHR). The HRA also makes it unlawful for public authorities in Scotland to act incompatibly with the ECHR rights. In addition to this, the Scottish Ministerial Code places an overarching duty on all Scottish Ministers "to comply with the law, including international law and treaty obligations."

Following on from the recommendations of the National Taskforce for Human Rights Leadership, Scottish Ministers have committed to introducing a new Human Rights Bill to the Scottish Parliament during this parliamentary session. The Bill will give effect to a wide range of internationally recognised human rights treaties and will ensure that the human rights of every member of Scottish society, including children, are protected. This will include economic, social, and cultural rights through the incorporation of the International Covenant on Economic, Social and Cultural Rights ICESCR, as far as possible within devolved competence, alongside three other international treaties for the empowerment of women, disabled people and minority ethnic people and a right to a healthy environment (see section 2.3).

iv. Children's Rights in Scotland

The Scottish Ministers take their responsibilities to progress children's rights in terms of the UNCRC very seriously. The UNCRC underpins key Scottish Government legislation and policies, including for example in relation to Getting it right for every child (GIRFEC) and our approach to tackling child poverty, child and adolescent mental health, education, and youth justice.

Throughout the reporting period, the Scottish Government has continued to take forward measures to help children and young people to better experience their rights.^[2] Of particular note is the Scottish Ministers' firm commitment to incorporate the UNCRC into Scots law. On 16 March 2021, the Scottish Parliament unanimously passed the United Nations Convention on the Rights of the Child (Incorporation)(Scotland) Bill (the UNCRC Bill) to incorporate the UNCRC and the first and second Optional Protocols, directly into Scots law subject to the limits of devolved competence. The UNCRC Bill, the subsequent UK Supreme Court judgment and next steps are discussed at section 2.4.

National Performance Framework

Children's rights, within the broader context of human rights, are at the heart of Scotland's National Performance Framework (NPF) which tracks progress towards delivery of Scotland's National Outcomes. In support of the review of the NPF, in 2018 the Scottish Government commissioned the Children's Parliament to ask children: 'What do children like and dislike about their current lives in Scotland and what sort of Scotland should children grow up in?'The report of this research What Kind of Scotland? (2017) informed the refreshed NPF (2018), which includes the following National Outcomes: "We respect, protect and fulfil human rights and live free from discrimination", "We grow up loved, safe and respected so that we realise our full potential".

The NPF is our main vehicle to deliver and localise the UN Sustainable Development Goals (SDG)^[3] in Scotland. In July 2015, the First Minister pledged to implement the SDGs and made a dual commitment to tackle poverty and inequality at home in Scotland and to help developing countries to grow in a fair and sustainable manner. The document, Scotland and the Sustainable Development Goals: a National Review to Drive Action (2020), was developed in collaboration with the Convention of Scottish Local Authorities (COSLA) and the SDG Scotland Network, an open coalition of over 700 people and organisations. The Review brings together evidence, actions, and stories of how we are making progress to meet the SDGs in Scotland.

v. Independent Monitoring of Children's Rights in Scotland

Currently, under Part 1, section 1(4) of the Children and Young People (Scotland) Act 2014 (2014 Act), the Scottish Ministers are required to report to the Scottish Parliament every 3 years on the steps they have taken in that period to secure better or further effect in Scotland of the UNCRC requirements, as defined in the 2014 Act, and to promote public awareness and understanding of the rights of the child.^[4] The Scottish Ministers must also set out their plans until the end of the next 3 year period. In line with these duties, the Progressing the Human Rights of Children in Scotland Report and Action Plan were laid before the Scottish Parliament in November 2021.

National Human Rights Institutions, the Commissioner for Children and Young People in Scotland and other relevant Non-Government Organisations (NGOs) also provide independent scrutiny and challenge to Scottish Ministers on their performance in respecting, protecting, and fulfilling human rights, including the rights of the child, in Scotland. These are discussed below. The Scottish Government's contribution to UK State party reports to the UN Committee is discussed at section i.

Human Rights Institutions in Scotland

The Scottish Human Rights Commission (SHRC) was established by the Scottish Commission for Human Rights Act 2006. As an 'A' status National Human Rights Institution (NHRI), it has a general duty to promote and protect human rights and encourage best practice in relation to human rights in Scotland. The SHRC can fulfil this remit by: providing information, guidance, and education; by conducting inquiries; monitoring law, policy and practice; and by intervening in civil court proceedings.

The Equality and Human Rights Commission (EHRC) was established by the Equality Act 2006. It is responsible for promoting equality and diversity, enforcing laws, and promoting mutual respect, including good relations. The EHRC's remit extends across Great Britain. EHRC is also an 'A' status NHRI and shares its mandate to promote and protect human rights in Scotland with the SHRC.

In Scotland, the EHRC covers human rights issues arising from matters reserved to the Westminster Parliament and the SHRC covers issues arising from devolved matters, unless it gives consent for the EHRC to handle them.

Commissioner for Children and Young People in Scotland

The Commissioner for Children and Young People (Scotland) Act 2003 (the 2003 Act) established the role of the Commissioner for Children and Young People in Scotland. The principal function of the role is to promote and safeguard the rights of children and young people, including raising awareness about children's rights. The 2003 Act makes clear that the Commissioner is not to be regarded as a servant or agent of the Crown and is not subject to direction or control of any Member of the Scottish Parliament, member of the Scottish Government or the Scottish Parliamentary Corporate Body (SPCB). The SPCB sets the terms of the Commissioner's appointment, including the allocation of resources.

The 2003 Act provides for the Commissioner to undertake investigations in respect of how service providers have regard to the rights, interests, and views of groups of children and young people in making decisions or taking actions that affect them. Provisions in Part 2 of the Children and Young People (Scotland) Act 2014, which were commenced in 2017, build on this by empowering the Commissioner to conduct such investigations on behalf of individual children.

The UNCRC Bill, as passed by the Scottish Parliament would, once enacted and the provisions commenced, give the Commissioner in Scotland and the Scottish Human Rights Commission (discussed above) power to: bring proceedings in a court or tribunal on the grounds that a public authority has acted, or proposes to act, incompatibly with the UNCRC requirements; and to intervene in court or tribunal proceedings in which a person claims that a public authority acted or proposes to act in breach of the 'UNCRC requirements' as defined by the Bill.

Civil Society

The Scottish Government provides grant funding to a wide range of third sector organisations working to ensure that the rights of children and young people are respected, protected, and fulfilled and to raise awareness of children's rights.

Together (Scottish Alliance for Children's Rights) is an alliance of Scottish children's charities that works to improve awareness, understanding and implementation of the UNCRC. The Scottish Government provides core funding to Together, including to support the organisation in monitoring and reporting on the progress made in Scotland in relation to children's rights. Together's annual State of Children's Rights in Scotland report provides a key non-government perspective on how children and young people are experiencing their rights across Scotland.

vi. Scotland's Youth Parliament, Children's Parliament, and Young Scot

Scotland has had an established Youth Parliament since 1999, and Children's Parliament (CP) since 1996. Members of the Scottish Youth Parliament (SYP) range in age from 14 to 25 years old. The Children's Parliament works with children from their early years to 14 years old. Since 2017, members of the SYP and CP have met each year with members of the Scottish Cabinet to discuss issues that matter to children and young people. Young Scot is the leading national youth information and citizenship charity for 11-26 year olds in Scotland. As well as proving essential services to young people across Scotland, these organisations also play a role in supporting the delivery of Scottish Government policy. The Scottish Government provides core funding to each of these bodies.