Embedding children's rights: position statement

4. Civil Rights and Freedoms

Relevant UNCRC Articles: 7, 8, 13 - 17

This cluster group focuses on children's civil rights and freedoms, including children's right to move freely in public space, to access information and to privacy.

4.1 Religious Observance in Schools

LOIPR request: 17(a) collective worship in publicly funded schools.

The Education (Scotland) Act 1980 (the 1980 Act) provides the statutory basis for local authorities to provide Religious Observance (RO) in Scottish schools. Religious observance and time for reflection has an important part to play in the development of learners' four capacities: a successful learner, confident individual, responsible citizen, and an effective contributor. The Scottish Government also considers that RO complements other aspects of a pupil's learning and is an important contribution to pupils' development. It should also have a role in promoting the ethos of a school, by bringing pupils together and creating a sense of community.

Section 9 of the Act (the conscience clause) provides a parental right to withdraw their child from RO. There is currently no equivalent statutory right to withdraw afforded to children and young people, however, schools should include children and young people in any discussions about aspects of their school experience, ensuring their views are taken into account. Doing so is in line with the Children and Young People (Scotland) Act 2014 and is especially relevant as children and young people become older and take more responsibility for their own learning. In relation to the current law, it should be noted that religious observance is not compulsory. Under current legislation, parents are legally entitled to withdraw their children from RO in local authority and Grant-Aided schools. This is supported by detailed guidance which encourages schools to discuss the question of opting out of RO with both parents and their children.

The Scottish Government is currently considering section 9 of the 1980 Act in the context of the provisions in the UNCRC Bill and is exploring options with regards to further strengthening the rights of children and young people in relation to religious observance in schools. The views of children and young people will be vital in shaping our considerations on RO in schools.

4.2 Access to Online Services and Connectivity

LOIPR request: 18(b), 19(a) and (c) access to online education, services and connectivity, digital literacy and skills and privacy online.

Connecting Scotland provides individuals with a device, connection with unlimited data for two years, as well as training and support. It reached 60,000 people in total by the end of 2021, with the first phase targeted at those most at clinical risk from COVID-19 and following phases targeted at older, disabled, and isolated people and those seeking employability support. The second phase of the Connecting Scotland programme was targeted specifically at supporting up to 23,000 households with low income families with children and young care leavers.

The Digital Strategy for Scotland, A Changing Nation: How Scotland Will Thrive in a Digital World (2021) sets out the vision for an ethical digital nation, "A place where children and vulnerable people are protected from harm. Where digital technologies adopt the principles of privacy, resilience and harm reduction by design and are inclusive, fair, and useful." The new Digital Strategy for Scotland includes actions that will ensure that no-one is excluded from digital services. An Expert group supported by public and stakeholder insights and inputs were tasked with providing recommendations which will support the creation of a framework for an Ethical Digital Nation. The recommendations outlined in their report Building Trust in the Digital Era: Achieving Scotland's Aspirations as an Ethical Digital Nation (2022) cover areas such as human rights and surveillance and set out an expectation of the ethical use of digital technologies. To support the recommendations, the report identifies a need for a comprehensive overview of the laws and regulations that can be brought to bear in Scotland to embed digital ethics, particularly in cases of online harm. Understanding the challenges in aligning existing diverse bodies around a common set of digital governance objectives will support Scotland to protect citizens from harms caused by malign online influences, particularly in the case of children.

The Strategic Framework for a Cyber Resilient Scotland (2021) is aligned with the Digital Strategy for Scotland and is underpinned by a set of guiding principles including an inclusive and ethical approach to cyber resilience. This includes encouraging responsible behaviours online, promoting individuals' rights online and increasing the participation of disadvantaged groups, for example, in cyber security skills development. We see cyber resilience as a critical enabler to our ambitions for digital public services, digital inclusion, and skills development.

We want Scotland's children and young people to be protected, safe and supported in the online world and for them to be able to enjoy the internet, show resilience and take advantage of the opportunities it has to offer. Measures to promote the online safety of children and young people are discussed at section 5.4.

Online Learning

Scotland has had a national online learning environment, known as Glow, since 2007. Glow is free to access for all learners and teachers in Scotland and currently delivers access to Microsoft Office 365, Google G-Suite and Wordpress Blogs. Glow is a fully managed service and only learners and education staff are permitted access, helping to ensure that children are not exposed to the dangers of the wider internet whilst undertaking learning online. Strict contractual rules are in place which do not permit service providers to mine data or advertise via Glow. Since its inception, the service has evolved over time, in consultation with key education partners, to ensure it continues to meet the needs of the system now and in the future.

Day to day responsibility for delivery of education resides with Scottish local authorities. They make their own decisions about delivery of the curriculum and the resources utilised to do so, including devices, connectivity and online services. In recent years, a number of local authorities have moved to provide devices at a ratio of per learner for all or some of their school populations. In response to the pandemic and the physical closure of school buildings, the Scottish Government invested £25 million to tackle digital exclusion and ensure learners were able to stay connected to their school, teachers, and learning. The investment has benefitted over 70,000 individuals across all areas of Scotland. Building on this investment, the Scottish Government is committed to ensuring that every school-aged child in Scotland has access to an appropriate device by the end of this parliamentary session (which extends to 2026).

Expectations for learning and progression within the Curriculum for Excellence, named 'experiences and outcomes' include a specific strand on digital literacy. This covers areas such as 'using digital products to achieve a purposeful outcome', 'searching, processing, and managing information safely and responsibly' and 'cyber resilience and internet safety'. This helps to ensure that learners are exposed to the risks and benefits of digital technology from the earliest stages of school education and are equipped with the necessary skills to deal with risks and maximise benefits.

4.3 Mosquito Anti-Loitering Devices

LOIPR request: 17(c) freedom of movement and peaceful assembly.

The Scottish Government has consistently opposed the use of mosquito devices and believes that the Antisocial Behaviour etc. (Scotland) Act 2004 currently provides sufficient measures to help police and local authorities prevent and deal with antisocial behaviour wherever it arises. We therefore feel there is no justification for the use of mosquito devices.

We have been very proactive in taking action to minimise the impact that these devices have on children and young people and have lobbied the UK Government and Health and Safety Executive to take action. Scottish Ministers wrote in March 2021 to other UK administrations to seek their current position in relation to mosquito devices. At the time of writing, the UK Government had no plans to introduce a ban, licence or restrict the use of these devices and the Health and Safety Executive had no plans to undertake any research to gather evidence on the health impact of these devices.

We have also written to a wide range of organisations in Scotland explaining the Scottish Government's position in opposing the use of these devices. In April 2021 we wrote to Police Scotland and local authorities to gather more evidence on the use and prevalence of these devices in Scotland. In response, all Scottish local authorities confirmed in 2021 that they were not using these devices at any of their premises, including schools, and were aware of only three cases of privately owned devices. In addition, the national rail company, ScotRail, confirmed that mosquito devices were not in use at any stations across their network, and both Police Scotland and the British Transport Police did not use mosquito devices as a way of tackling antisocial behaviour. We have also written to organisations representing the business sectors explaining the Scottish Government's position on the devices.

While it is currently unknown how many of these devices are in use in Scotland, there is no evidence of widespread use. We will consider any new evidence and appropriate, justified, and proportionate responses to this, including what could be done within the scope of the powers available to the Scottish Government to prohibit or limit the use of these devices.

The use of mosquito anti-loitering devices was raised by children and young people at the meeting of the Scottish Cabinet in 2018. Members of the Scottish Youth Parliament also led a campaign in 2019 to end their use, referring to the physical effect of these devices and possible breach of their rights, which led to a petition, promoted by the Children and Young People's Commissioner. This was considered by the Scottish Parliament's Public Petitions Committee. The Scottish Youth Parliament's website encourages people to report incidences of use.

4.4 Stop and Search

LOIPR request: 18(a) stop and search checks.

A Code of Practice on the use of Stop and Search came into effect in May 2017 and the use of non-statutory (consensual) search ceased. The Code sets out the circumstances in which a search may be carried out, the procedures to be followed, the record to be kept and the right of someone to receive a copy of that record. In most of the relevant legislative provision, the search must be based on there being a reasonable suspicion which must be genuine and for which there must be an objective basis. There are limited exceptions based on other grounds, but which are considered proportionate (e.g. they are time limited). The Code of Practice is clear that an individual cannot be stopped and searched because of their age, sex, race (including nationality and ethnic background) or religion.

Section 7 of the Code contains specific guidance on searches of children and young people. It sets out that the police must have the child's wellbeing as a primary consideration in deciding whether to proceed with a search and, where that is deemed necessary, to conduct searches in a way that minimises potential distress. To help children and young people understand their rights under the Code, a separate Guide entitled, Stop and Search in Scotland: What You need to Know - A Guide for Children and Young People was also published in May 2017.

Under section 69 of the Criminal Justice (Scotland) Act 2016, Police Scotland must publish, as soon as practicable after the end of each reporting year, information about the number of searches carried out, including details about age, gender, ethnic and national origin of persons searched. Since 2015, in the interests of accountability and transparency, Police Scotland has published stop and search data on its website.

The Independent Advisory Group on Stop and Search conducted two reviews of the Code of Practice following its publication – a six-month review, published in February 2018, and a twelve-month review, published in June 2019. These reports found that few issues were raised around ethnicity and the vast majority of searches and seizures in Scotland involve people who self-define as belonging to a white ethnic group.

Strip Searches

The use of strip searching is an operational matter for Police Scotland. Police must ensure that their actions are fully compatible with the young person's human rights under the UNCRC and have the child's wellbeing as a primary consideration in deciding whether to proceed. A strip search is undertaken only under circumstances that present concern for the wellbeing of the child or the safety of others, due to concerns over concealed drugs or potentially harmful articles.

Police Scotland carry out all strip searches in police custody in accordance with the Care and Welfare of Persons in Police Custody Standing Operating Procedures. In all cases involving children, a strip search will only take place with the authority of officer of the rank of Inspector or above. To support the child when a strip search is being carried out within police custody, a responsible person should be present when the strip search is carried out. A strip search can take place without a responsible person if the child has specifically requested this, and the responsible adult agrees.

A Code of Practice on carrying out a stop and search outwith police custody contains detailed guidance on the circumstances in which strip and intimate searches can be carried out and specific provisions on searches of children and young people. Police must ensure that where a search is considered necessary, they must be conducted in a way that respects the child or young person's dignity and privacy and minimises any potential distress.