Human Rights Bill: Core Implementation Working Group - May 2024

Attendees and apologies

Andrew Montgomery, Social Security Scotland

Professor Alan Miller, University of Strathclyde

Bill Stevenson, Equality and Human Rights Commission

Brianna Fletcher, COSLA

Dr Elaine Webster, University of Strathclyde

Elena Jenny, Scottish Human Rights Commission

Katie Boyle, University of Strathclyde

Mhairi Snowden, Human Rights Consortium Scotland

Miriam McKenna, Improvement Service

Nicola Anderson, Scottish Courts and Tribunal Service

Nina Miller, Audit Scotland

Professor Nicole Busby, University of Glasgow

Rebecca Spillane, Improvement Service

Tony McGowan, NHS Health Improvement Scotland

Apologies 

George Dodds, Public Health Scotland

Luis Felipe Yanes, Scottish Human Rights Commission

Rachel Grant, Scottish Courts and Tribunals Service

Sarah Rodger, Society of Local Authority Lawyers and Administrators in Scotland

Items and actions

Introductions

Kavita Chettywelcomed members to the meeting and noted apologies. Members were asked to contact the Human Rights Office by 9 May 2024 if they had any amendments to previous minutes. It was highlighted that the Wider Engagement Group met on 25 March to discuss both Advocacy, Advice and Signposting, and the Development of Guidance. The minute from this meeting will be shared in due course on the Scottish Government webpage for the Implementation Working Group - Human Rights Bill: Implementation Working Group - gov.scot (www.gov.scot). Please contact HumanRightsOffice@gov.scot for any corrections or queries.

Lived Experience Board

The Bill Team presented the views of the Lived Experience Board’s (LEB) on capacity and capability building. Common views included recognition that the Bill would need substantial investment, and that the level of resources and budgeting would determine the success of implementation. Based on experiences of accessing public services, LEB members were sceptical that the Bill will be adequately funded in order to make a difference at the level where service provision is accessed. They felt that there was a strong need to carefully monitor and scrutinise the use of new and existing resources, including budget setting, in relation to the implementation of the Bill.

Members felt that clarity around role and functions is critical to scrutiny and accountability as capacity is directed to the implementation of the Bill. They also noted that the overall complexity of the Bill risks reducing its effectiveness of holding duty-bearers to account in delivery. There were concerns that the complex nature of the Bill and its framework, the staggered approach to commencement and generally challenging nature of navigating devolved legislation and procedural or compliance duties would mean that someone working at the local authority or duty-bearer level would find this too difficult to understand and implement.

LEB groups called for a co-ordinated, joined-up and multi-institutional approach to implementation, aligned with other programmes and legislation such as the National Care Service Bill, Learning Disabilities, Autism and Neurodivergence Bill, Scottish Mental Health Law Review and UNCRC Act.

Members noted that duty-bearers need to be mindful of the risk of groups of rights-holders falling through gaps in implementation. Duty-bearers should be required or encouraged to actively identify those whose rights are at risk, and engage in meaningful conversations to understand their needs. The Scottish Government should play a role in checking that the law is having the right impact and take proactive steps if it is not.

In terms of expectations for capability and capacity building, LEB members broadly felt like this process should have an increasing impact over the years-long implementation period. It should be influenced by guidance, monitoring and reporting, and progressively stronger duties. They hope that the Bill will transform the way resources are directed around the system to tackle human rights issues.

IWG Reflections

Members provided the following reflections.

The Bill should ensure that public bodies make a substantial change to how they do things, ensuring that human rights are incorporated into ways of working. Senior leaders need to demonstrate leadership when it comes to human rights and ensure that this is reflected in all levels of organisations.

There can sometimes be a mismatch between how people understand their rights, and how a public body implements or delivers them. Frontline staff members need to have a strong understanding of human rights and be empowered, enabled and motivated to consider these in the structures within which they operate – this has the most potential to improve outcomes for service users.

Measures should seek to avoid putting pressure on over-stretched services. It is important to recognise the intersectional nature of those delivering frontline services as both duty-bearers and rights-holders.

There are some concerns around consistent access to rights across local authorities, where there can be different experiences to accessing rights in different areas and services, particularly where there are overlapping frameworks which can be difficult to navigate.

Lived experience feedback captures the need for systems change and a transformative approach to public service delivery being taken with a human rights approach. One member suggested that it could be helpful to bring in academic expertise on transformative approaches to inform the implementation of the Bill.

Reflections from the Improvement Service 

Improvement Service provided an overview of some of the main guidance, support and capability building measures which have accompanied the UNCRC Incorporation (Scotland) Act.

Much of this work has sought to bring together people working across different policy spaces, to highlight children’s rights as an issue and promote understanding of children’s rights in different areas including climate change and poverty. Networking has been a very important feature of this work, working with organisations including Together and the Scottish Youth Parliament.

Many local authorities expressed a preference for specific guidance, and have given much consideration and feedback to the statutory and non-statutory guidance published to support UNCRC. The ‘Getting ready for the UNCRC framework’ was developed to help local authorities prepare for implementation and consider different aspects, including leadership, empowerment, child-friendly processes, governance structures. Each area has challenge questions and links to resources, and the guidance is intended for use as a self-assessment framework.

The Improvement Service meets local authorities on an individual basis, providing a range of support through 1:1 conversations, training, resources and peer to peer networking opportunities.

The location of UNCRC work in organisations can vary hugely, depending on whether the ask to consider the rights of the child is coming from a leadership level, or a service provision level. Shetland is a good practice example of where the UNCRC is being embedded into local service delivery, involving service deliverers and children in activities and decisions, as well as involving senior leaders at a more corporate level.

The Improvement Service are seeking to deepen their approach to and support for this work, moving away from the initial information and awareness-raising stage into a best practice and lessons learned stage.

At a basic level, the language around human rights can be difficult for local authorities to navigate. Some colleagues have the capacity to be fully engaged and develop a good understanding, but the more they learn, the more complicated it can become. It was also noted that the post of Equality Officer, which is often responsible for covering planning, monitoring, reporting and evaluation of Fairer Scotland Duty, Public Sector Equality Duty, the UNCRC Act duty and, in the future, the Human Rights Bill – is sometimes not a full time post for people. Ensuring that potentially complex language and frameworks around the Bill are explained in an accessible manner is crucial for effective implementation.

Policy proposals for capability building

The Bill Team provided an overview of the proposals and questions set out in the consultation, as well as the key themes which were identified through the consultation analysis. The National Taskforce for Human Rights Leadership made several recommendations relating to capability building, including:

Recommendation 18: The Scottish Government takes steps to ensure that public authorities are supported to effectively implement the framework through provision of adequate resources and clear guidance on their duties.

Recommendation 19: The Scottish Government should consider how scrutiny bodies can be supported through provision of adequate resources and clear guidance on their duties within the framework to effectively oversee the framework implementation plans of duty-bearers.

Several other recommendations are also relevant for the development of capability or capacity building supports, including Recommendations 20 and 27, which state that the Scottish Government should work with civil society, community-based stakeholders and public authorities, and engage with the public in the development of the framework, guidance and information.

The Human Rights Bill consultation ran from the 15th of June to the 5th of October 2023. Key themes around capability and capacity building included:

• The importance of a sequential approach to implementation to allow the framework to embed
• The need for significant government investment into capability and capacity building to aid successful implementation
• Support should be provided for duty-bearers, scrutiny bodies, advice and advocacy services, third sector organisations who are duty-bearers and the third sector more broadly
• Capability and capacity building should include training, awareness, education, guidance and support. Particularly, training for the frontline staff of duty bearers
• A collaborative approach should be taken to the development of capability and capacity building plans, ensuring the involvement of a wide range of relevant stakeholders and rights-holders
• Some responses recommended that the Scottish Government should aim to align the implementation of new duties with existing practices, including capability building, as well as review what did/not work well in the past to improve provision using existing infrastructure

Existing Scottish Government work around capability and capacity building work was referenced, including the work to support the UNCRC Act, such as the Implementation Service (see above), the UNCRC Innovation Fund, and support to health boards from NHS Education for Scotland. Guidance for public services, getting ready for the UNCRC self-evaluation framework, and advice and guidance on enabling children and young people’s participation in decision making has been provided for duty bearers. More broadly, the UNCRC Act has introduced animations, e-learning and guidance on taking a children’s rights approach.

Capability and capacity building proposals which are under development for the Human Rights Bill were shared with the group for feedback. These included the development of statutory and non-statutory guidance to explain the Bill, provide a supporting framework to aid compliance, and furnish further information relating to best practice and case studies. In addition, a capability-building approach could include the development of a multi-institutional capability-building programme, working with key stakeholders to design this, as well as funding for key stakeholders to develop and deliver training, resources and 1-2-1 support. Funding could also be provided for public authorities to take a human rights-based approach.

Members were asked questions on the topics of ‘What?’, ‘Who?’ and ‘How?’ in relation to the development of capability building measures to support the Bill.

Discussion

Discussion questions were posed to members and provided below is a list of key points raised by members.

What?

• What should capability building include and involve?
• Should there be a central focus of this work? What are the top priorities?
• Do you have any examples of capability building that worked well or less well that we can learn from?

Leadership

Leadership is key, and without buy-in from senior leadership level, the other levels of organisations will not feel supported to follow suit. There are strong examples from the UNCRC landscape where senior leaders have fully committed to understanding the legislation and what it is trying to achieve, and where this has made implementation more successful at other levels. There are different abilities and needs for guidance and support, which will need to be carefully considered to ensure that culture change is implemented at all levels. Importantly, it is vital that the Scottish Government can set an example when it comes to taking a human rights based approach, and both rights-holders and duty-bearers can learn from best practice.

Engagement

The primary strategy used by EHRC is GATE – Guidance, Advice, Training and Education. For good engagement to work, it is always important to explore the motivations of duty-bearers for compliance and beyond. Different audiences are more or less invested if you engage with them properly, identifying their needs and capabilities helps to understand how you can support them. The point at when you deploy resources and learning interventions is very pivotal. There are some points at which learning interventions will be better received depending on key dates, for example – compliance assessment or reporting. It is also crucial to consider the level at which engagement is targeted – as you could deploy intervention at a board or decision maker level, sessions for leaders, or wider sectoral sessions for equality officers and leads.

Resources

It is also important to ensure that there is a good understanding of how human rights tie in with existing duties. Toolkits and frameworks for mapping will assist with this. It was noted that the Government should not waste time re-inventing the wheel, but creating new guidance where relevant, with a focus on learning from best practice, signposting to existing resources, and facilitating good networking and peer support.

Impact

There is a need to understand local and national data, and be able to use this to measure the impact that duty-bearers have, so that it can be understood and measured whether the law and policies are embedding successfully or not. There is also the impact the Bill seeks to have on the wider culture of the public sector, and a question about whether or not it can be established whether the duty-bearers/Scottish Government have made human and children’s rights relevant to someone’s job.

Learning from UNCRC

There is much to be learnt from the approach taken by the UNCRC team and the Improvement Service. Some members commented that for successful implementation in the long-term, that the UNCRC post in the Improvement Service needs to be funded well beyond one year.

Theory of Change

There were mixed views about the Theory of Change which supported the development of the UNCRC. Some members felt that there were lessons to be learned from this, and that the tool, which was evidence led and used by academics and public sector, was of use and supported colleagues to take a consistent approach. Others felt that the Theory of Change in practice can be quite esoteric for people working in public bodies, more so at the frontline of service delivery. It was commented that often, there is simply not enough time for people to be able to read and digest very lengthy or technical documents, and that the logic model which underpins them can be more practical and useful with respect to frontline service delivery.

Who?

• Who should be involved in the development of resources and support? Who should be providing training and support?
• Who are the key people who will be accessing the training, support and resources?

The current level of understanding of human rights is hugely variable across the public sector and beyond. This can make capability projects difficult to deliver in instances where the existing level of knowledge that the audience has is so varied. There is a need to break down information into different levels in terms of how much different people need to understand in different roles and requirements and avoid unnecessarily overburdening people.

The HRCS undertook the ‘Capacity Review of Scottish Civil Society on Human Rights in January 2022, to understand the capacity of civil society (mainly third sector) around human rights, and found that there was a much greater understanding and application of the UNCRC than other human rights. There were quite a big proportion who felt very new to engaging around human rights in general.

It is really important that those with lived experience of rights infringements, including organisations of collective lived experienced, are a part of developing capability training and resources. For this Bill, that would have to at least (and not limited to) include people who experience racism, disabled people, women. Officials also ought to consider how they engage the legal system and judiciary to ensure that they are considered and consulted on implementation. It was reflected that one response from the consultation argued that trade unions should be involved in capability building as they would have existing networks and involvement across the public sector, which could be valuable as part of the delivery mechanism.

How?

• How do we deliver capability building in a way which meets the needs of duty-bearers and rights-holders?
• How can we bring together all the different stakeholders and ensure effective coordination of work?
• Are there models of co-ordination and/or co-production in other areas that we can learn from?
• Should we align with capability building work in relation to existing and upcoming law and policy (UNCRC, Mainstreaming Strategy, NCS Bill, etc.) and, if so, how best do we do that?

There is a lot of expertise in certain thematic areas relating to the rights of the child where they are most at risk, e.g. care experienced children or children who have interacted with the judicial system. Targeting the ‘how’ in areas where it might be anticipate that there will be rights breaches could be an approach which will target help and intervention where it is most needed.

Peer networks are valuable in bringing together learning, partnership working and collaboration from across different sectors. The range of learning materials produced should also be presented in a variety of ways to allow for different learning styles and accessibility needs. There is enthusiasm for dedicated training webinars and workshops, as well as a Skills and Knowledge Framework similar to the UNCRC, along with the resources and support to engage with that. There may also be relevant learning to consider from the field of human rights education research.

It is important that plans for implementation do not feature too late in the process, and that there is ample opportunity build in for stakeholders to comment on these.

Any Other Business

Members were thanked for their input during the meeting. It was noted that the next meeting will be scheduled for a date to be confirmed in June.