Incorporating the United Nations Convention on the Rights of the Child into Domestic Law in Scotland Working Group: summary report

Annex M - Incorporating the United Nations Convention on the Rights of the Child into Domestic Law in Scotland Working Group, 5^th Meeting

Minutes of Meeting Held at COSLA Offices, Edinburgh, at 10 am on Monday, 9 September 2019

Present: Maree Todd, Minister for Children and Young People
Michael Chalmers, Director, Children and Families, Scottish Government (SG) (Chair)
Dr. Katie Boyle, University of Stirling
Michael Clancy OBE, The Law Society of Scotland
Chief Superintendent David Duncan, Police Scotland (by teleconference)
Nicola Dickie, COSLA
Juliet Harris, Together (Scottish Alliance for Children’s Rights)
Mairi Macpherson, Creating Positive Futures, SG
Dr. Kenneth Meechan, SOLAR
Dragan Nastic, UNICEF
Laura Pasternak, Scottish Youth Parliament
Clare Simpson, Parenting Across Scotland

In Attendance: Liz Blair, SG Legal Directorate^[74]
Alexandra Devoy, SG, Children’s Rights
Nicola Guild, SG Legal Directorate^[74]
Ceri Hunter, SG, Children’s Rights
Lawrence Mearns, Children’s Rights
Agnes Rennick, SG Children’s Rights (Secretariat)

Apologies: Lynda Brabender QC, Westwater Advocates
Prof. Aoife Nolan, University of Nottingham
Lucinda Rivers, UNICEF
Douglas Ross QC, Ampersand Advocates
Hannah Ross, COSLA
Norma Shippin, NHS
Suki Wan, Scottish Youth Parliament

Welcome

1. The Chair thanked Members for attending the meeting. The Chair also thanked COSLA for hosting the meeting at its central offices.

2. The Chair extended a warm welcome to Maree Todd MSP, Minister for Children and Young People, who was attending this meeting to learn more about the work of the Group and to thank Members for their contributions.

Minutes of Previous Meeting and Action Points

3. Members agreed the minutes of the previous meeting. The Chair then provided an update on the actions from previous meetings of the Group as follows:

From meeting of 31 July

Action: The SG agreed to circulate a draft concise note of the workshop discussions from the 10 July meeting for comments and further discussion.

Update: The Chair confirmed that this paper was being finalised and would be circulated to Members shortly. The Chair further confirmed that, once issued, the Secretariat would be happy to receive any comments on this note by email.

Actions: Members of the Working Group are encouraged to circulate their ideas for possible ways forward in addressing the issues relevant to the legal mechanisms for incorporation and SG to work with members of the Group to seek ways to address the issues raised.

Update: The Chair confirmed that a number of Members of the Group had agreed to participate in a teleconference meeting to consider in detail, the issues raised in a discussion paper prepared by a Group Member. This meeting was due to take place on 9 September at 3pm in Victoria Quay. The Chair extended the invitation to any other Members who would like to attend this meeting.

From Meeting of 27 August

Action: The SG agreed to clarify the Terms of Reference for discussions with Members outwith the plenary meetings of the Working Group through correspondence.

Update: The Chair confirmed that the Secretariat had forwarded an email to Members on 28 August proposing the following:

• Discussions with Members outwith the plenary meetings will adhere to the Terms of Reference for the plenary UNCRC Working Group.
• Papers produced by Members, or following from discussions with Members outwith the plenary meetings, will be clearly marked as ‘Discussion Papers’ and will be published on the Website as part of the suite of papers developed by the Working Group.
• ‘Discussion Papers’ developed by Members or following from discussions with Members outwith the plenary meetings will also inform the report that the Group will develop and share with Ministers.

Summary of Workshop discussions at the 4^th meeting of the Group on 27 August

4. The Chair invited comments on the summary of the workshop-style discussions on Compatibility and Redress that took place at the 27 August meeting. A number of amendments were suggested.

5. A Member noted that, although the summary note reflected the wide range of views and opinions expressed by Members, the workshop discussions had not considered the issues around Compatibility and Redress in detail, including how these might be resolved. It was agreed that the summary would be amended to reflect that further detailed consideration would be required around the issues set out in note.

Actions: the SG agreed to amend the summary of the workshop discussions from the 27 August meeting to reflect suggested amendments and to circulate a revised draft for Members’ consideration and clearance.

Consultation and Engagement Feedback

6. The SG provided an overview of the initial findings of the independent contractor commissioned to analyse the responses received to the consultation on incorporating the UNCRC into domestic law, which closed on 28 August. The SG noted that over 160 responses had been received and that, in line with SG guidance, these would be published on the SG website within 20 working days from the close of the consultation. The SG also confirmed that a more detailed update on the findings of the consultation would be provided at the next meeting of the Working Group, which was due to take place on 25 September.

7. Some Members asked for clarity around how separate engagement with children and young people would be reflected in the consultation analysis. Other Members asked for the reports of the bespoke consultation events involving children and young people to be made available on the SG website.

8. The SG confirmed that the Directorate for Children and Families had supported 7 engagement events involving 180 children and young people, including ‘seldom heard’ children, and that these bespoke events would provide an important supplement to the formal consultation process. The SG noted that reports from these events would also be published as standalone documents on the website.

9. The SG further noted that outcomes from other events organised by stakeholders, involving children and young people, that had been submitted as part of formal consultation responses would be analysed as part of the independent consultation analysis.

Action: The SG agreed to provide a more detailed update on the responses received to the consultation at the next meeting.

Discussions on the way forward regarding Themes 2 and 3 of the Consultation document.

Theme 2 – Embedding Children’s Rights in Public Services

10. Members were invited to consider the possible ways forward in relation to the issues raised during the workshop discussions around Theme 2 of the consultation, which took place at the meeting of 31 July. The following points were raised by Members in discussion:

• A Member expressed a view that no devolved nation had previously incorporated the UNCRC into domestic law and that Scotland faces particular issues arising from the devolution settlement. However, there would still be many opportunities to learn from the international experience of incorporation.
• A Member suggested that it would be important for Scottish Ministers to continue to lead on children’s rights and to engage in wide ranging and cross-sectoral dialogue to ensure that all sectors were engaged in the process and prepared for incorporation prior to implementation of the Bill.
• A Member suggested that the summary note did not consider or reflect the role of regulators, for example, those in relation to housing, care, education etc. They suggested that, if children’s rights were to be genuinely mainstreamed across public service delivery, it would be important to consider how rights might be embedded widely across the regulatory frameworks for public authorities.
• A Member suggested that there were a range of smaller, specific actions that could be highly effective in helping to mainstream rights across public authorities. For example, through regular reports on rights to local authority committees and the use of the Child Rights and Wellbeing Impact Assessment, etc. Ultimately, however, they suggested that the development of a rights based approach would require culture change amongst leaders and at the level of the individual practitioner.
• Some Members suggested that legislation to incorporate the Convention into domestic law must be supported by courageous leadership to ensure that a rights-based approach underpins the development of all relevant public services. For example, it was suggested that there would need to be clear leadership from Scottish Ministers and other key leaders and influencers across public authorities and through local partnership arrangements etc.
• It was noted by some Members that there would be a need to provide clarity to duty bearers early in the implementation process on the rights and duties provided for in the Scottish Bill and a way to make them meaningful to frontline workers, such as police officers.
• A Member reported that there was broad support from civil society organisations and from children and young people to use the proposed Children's Scheme to build on the reporting requirements on Ministers and public authorities under Part 1 of the Children and Young People (Scotland) Act 2014, particularly in relation to ensuring that children and young people are engaged in all levels of decision-making. They also noted that Care Experienced children and young people have suggested that the Children’s Rights Scheme could include the requirement for Ministers and public authorities to report on the steps they have both taken, and intend to take, to promote an atmosphere of love, happiness and understanding. The preamble to the Convention states “Recognising that the child for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding”.
• A Member expressed a view that the current duties to have due regard or to consider and raise awareness of children’s rights in Wales and Scotland respectively are about mainstreaming the Convention, rather than incorporation. In contrast, incorporation of the UNCRC into domestic law would seek to ensure that the outcome of any policy decision or service delivery would be compliant with the Convention.
• A Member suggested that the delivery of children’s rights on the ground would need to be sufficiently resourced. The Scottish Government would need to consider funding when taking forward the Scottish Bill.
• Members were asked if they had a sense of how far reaching incorporation might be in terms of the delivery of public services. Some Members expressed concerns about current provision for certain groups of children and young people.

Theme 3: Enabling Compatibility and Redress

11. Members were also invited to consider the possible ways forward in relation to the issues raised at the workshop discussions around Theme 3 of the consultation, which took place at the meeting of 27 August. The following points were raised by individual Members in discussion:

• Some Members suggested that it may be appropriate for public authorities to undertake an audit on compliance with the UNCRC. This would help authorities identify where there might be gaps in their current practice and delivery. A similar exercise was undertaken by public authorities prior to commencement of the Human Rights Act 1998.
• Alternatively, to avoid duplication of effort and to ensure consistency in approach, some Members suggested that the proposed audit could be undertaken at a national level, looking across relevant public services.
• A Member noted that incorporation of the Convention will mean that where there is a right, there is a corresponding remedy for any infringement.
• A Member suggested that there would be a need to determine whether the Scottish Bill should make provision about remedies or whether this should be left to the discretion of the courts. In some circumstances, it would be more appropriate to seek to achieve system change, in order to remedy a violation of a right, rather than focus on providing financial compensation.
• A Member suggested that consideration should also be given to how new types of rights might be adjudicated upon. For example, following incorporation, an application for redress might involve multiple duty bearers with distinct, but interconnected roles and functions. It would be important, therefore, for the Scottish Government to have early contact with the Scottish Civil Justice Council.

September 2019