Human Rights Bill: Core Implementation Working Group minutes - February 2024

Attendees and apologies

• Dr Elaine Webster, University of Strathclyde    
• Katie Boyle, University of Strathclyde
• Bill Stevenson, Equality and Human Rights Commission
• Mhairi Snowden, Human Rights Consortium
• Miriam McKenna, Improvement Service Scotland
• Nicole Busby, University of Glasgow
• Luis Felipe Yane, Scottish Human Rights Commission
• Jillian Matthew, Audit Scotland
• Garrick Smyth, COSLA
• Rebecca Spillane, Improvement Service
• Rosie Tyler-Greig, Healthcare Improvement Scotland
• George Dodds, Public Health Scotland
• Lesley Crozier, Scottish Council Equality Network Chair
• Mhairi Snowden, Human Rights Consortium
• Siobhan Toner, Social Security Scotland
• Andrew Montgomery, Social Security Scotland
• Sarah Rodger, Society of Local Authority Lawyers and Administrators in Scotland
• Rachel Grant, Scottish Courts and Tribunals Service Legislation Team

Apologies

• Tony McGowan, Healthcare Improvement Scotland
• Alan Miller - University of Strathclyde

Items and actions

Welcome and introductions

Kavita Chetty welcomed members to the meeting and provided introductory remarks.

Members were asked to note minutes from the previous meeting on 5 December where the group discussed advocacy and advice. Members were asked to contact the Human Rights Bill Team with any comments by 19 February.

UNCRC Act reflections

Lyndsey Saki provided reflections on developing guidance for the UNCRC Act.  

Guidance groups

An Embedding Children’s Rights in Public Services group was set up to support the UNCRC Implementation programme. The purpose of this working group is to assist in developing support materials for public authorities and those undertaking functions of a public nature to implement the UNCRC.

A guidance sub-group was also established to inform the structure and content of statutory guidance. The group was made up of representatives from public authorities, third sector organisations and children’s rights bodies. It was convened in March 2022 and continued to inform guidance until the final review in January 2024.

Non statutory guidance  

While developing statutory guidance on the UNCRC Act,a decision was taken to produce non-statutory guidance due to the amount of information in the draft content. To ensure statutory guidance will be as concise and clear as possible, information not directly related to the UNCRC Act duties was removed and included in non-statutory guidance on taking a children’s human rights approach.

A further advantage to non-statutory guidance is that the guidance can be updated frequently to provide further advice and case studies as implementation progresses. Whereas any change to statutory guidance would require a public consultation.

The short, six-month, commencement period for the UNCRC Act means it may not be possible to publish statutory guidance ahead of the commencement. However, the non-statutory guidance provides practical support to public authorities to help them prepare for commencement of duties in the Act.

Lyndsey outlined the advantages of having non statutory guidance. Some of these advantages are that the guidance can be updated frequently to provide further advice and case studies as implementation progresses. Whereas any change to statutory guidance would require a public consultation.

The non-statutory guidance was published on 8 January 2024. It provides information and resources to support public authorities and other organisations to implement a children’s human rights approach.

Statutory guidance

To meet duties under section 13 and section 20 of the UNCRC Act, Scottish Government ministers are required to publish statutory guidance to support the implementation and operation of the sections within the UNCRC Act.

Update post meeting: The consultation on UNCRC statutory guidance went live on 22 February.

Guidance proposals and lived experience reflections

LEB views on guidance

Joseph McKeown provided an overview of the Lived Experience Board (LEB) and its work to date supporting the development of the Bill. The LEB has produced a number of reports highlighting key issues. Joseph presented LEB views on guidance.

There was consensus from these groups that there was a need to ensure guidance was flexible, accessible and that it should create easier routes to raising issues.

The three groups also highlighted the need for training for employers and staff on human rights including training on communication with people with learning disabilities. Another key issue raised was that people should be mindful of guidance versus legal requirements as this may cause diluted impact of guidance at the front line of service delivery.

SG guidance proposals

The Bill Team provided context on the national taskforce recommendations, which make reference to the provision of guidance. There was a recommendation from the national taskforce that a mixture of statutory and non-statutory guidance should be in place to support the Bill and that guidance should be developed in consultation with stakeholders including rights-holders The recommendations highlight the importance of ensuring that public authorities are prepared and feel supported to fulfil their duties under the Bill through provision of adequate resources and guidance.

Feedback from consultation responses was shared with the group. Key themes arising from responses were the strong need for guidance and how guidance is crucial to assist them in understanding their duties, as well as considering how the Human Rights Bill fits in with other human rights and equality laws and duties. Respondents also shared the view that further clarifications through guidance would facilitate the interpretation of the Bill by all stakeholders.

Throughout consultation responses, there was broad support for stakeholder involvement and co-production in the development of guidance. It was highlighted that guidance for rights-holders should be designed and co-produced in conjunction with rights holders and civil society and should draw from lived experience.

There were also suggestions made from stakeholders that guidance should be accessible, comprehensive and clear and should include further clarification on key terms.

Further group discussion of proposals

Kavita opened to the group to share thoughts, reflections and any questions they have on guidance proposals.

Issues raised by members:

• guidance should be clear so there are no conflicting messages across services. Having clear guidance will reduce inconsistent and confusing decision making. It is important to ensure coherence across guidance, incl. non-statutory guidance, especially if not just the Scottish Government but also other bodies produce non-statutory guidance
• guidance should be accessible to everyone but in particular disabled people and duty bearers who are tasked with using the guidance. It is important for rights holders to be able to understand the guidance when raising issues
• importance of including information on expectations and accountability in statutory guidance and outlining what best practice would be
• a participative approach to guidance and awareness raising is important for rights holders and duty bearers to get a common understanding of what is expected of them. This should involve deliberately going out and consulting specific rights-holders. A guidance group, similar to the group who worked on the UNCRC Act guidance, is important
• guidance needs to be targeted at the right level to be helpful to those who have a task to do. Capacity-building and awareness-raising are key. Thought given to who the audience is and who guidance is targeted at to make it meaningful. Agreement within the group that too much guidance could become unhelpful
• helpful to use best practice and case studies in non-statutory guidance to explain clearly what is expected of duty bearers
• in terms of a good practice example, it was mentioned that the Housing Ombudsman in England is doing some very innovative work in relation to human rights
• important that minimum core obligations are made clear in statutory guidance as this is what rightsholders will point to when raising concerns.
• EHRC’s experience has been that both statutory and non-statutory guidance is key
• data is vital, including what data is being collected and by whom. It is important to have an evidence-based system
• concerns around statutory guidance consultation and the resource it requires. The group raised that resources would need to be put into those who are providing responses and for government to recognise the capacity pressures this would place on duty bearers

Any other business

Members were thanked for their input throughout the meeting and asked to get in touch with the Human Rights Bill team if they have further thoughts on any issues.

The next meeting of the core IWG will take place in April and calendar invites with details will be issued in the coming weeks.