Preventing and responding to gender based violence: a whole school framework

Appendix C: Legal and Policy Framework

Scottish law and policy

There are a number of legal obligations on education authorities/local authorities, health boards and schools that must be considered as part of their approach to GBV.

Law

The Equality Act 2010 places specific requirements upon education authorities, managers of grant-aided schools and proprietors of independent schools, to prevent unlawful discrimination, harassment and victimisation in their schools. The protected characteristics of disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex and sexual orientation apply in relation to schools.

The Children and Young People (Scotland) Act 2014 places duties on certain public authorities, including local authorities and health boards, to report every three years on the steps they have taken in that period to secure better or further effect of the United Nations Convention on the Rights of the Child (UNCRC) requirements within their areas of responsibility. The Scottish Government remains committed to the incorporation of the UNCRC to the maximum extent of the Parliament’s powers and to commencement of the UN Convention on the Rights of the Child (Incorporation) (Scotland) Bill as soon as possible.

Local authorities, as any public authority, have a duty not to act in a way which is incompatible with human rights protected under the European Convention on Human Rights (ECHR). This applies to all young people. They all have rights and protections and strengths and vulnerabilities. All young people should experience privacy, safety, dignity, and respect.

The Standards in Scotland’s Schools etc. Act 2000 provides that every child of school age has the right to be provided with school education by an education authority (or by virtue of arrangements made or entered into by an education authority). The Act requires that, in meeting their duty to provide education, education authorities must secure that the education is directed to the development of the personality, talents and mental and physical abilities of the child or young person to their fullest potential. The Act also requires that in meeting their duties, education authorities must seek and take account of the view of children and young people in decisions that significantly affect them.

The Health and Safety at Work etc Act 1974 places employers under a duty to ensure, as far as reasonably practicable, the health, safety and welfare of employees at work. This duty includes protecting employees from violent incidents, including GBV incidents, and reducing the risks of such incidents occurring.

Under the Management of Health and Safety at Work Regulations 1999, employers must assess risks to employees and make arrangements for their health and safety by effective planning, organisation, control, monitoring and review. This includes protecting employees from the risk of violence such as GBV.

The Data Protection Act 2018 states that relevant personal information can be shared lawfully if it is to keep a child or individual at risk safe from neglect or physical, emotional or mental harm, or if it is protecting their physical, mental, or emotional well-being.

Age of Criminal Responsibility

GBV displayed by a child or young person may constitute a criminal offence. School staff should have a general awareness of the Age of Criminal Responsibility (Scotland) Act 2019 which increased the age at which a child is considered to have the capacity to commit a crime from age 8 to 12. This means that children younger than 12 cannot accrue convictions or criminal records.

The Act removes the ability to refer a child to a children’s hearing on offence grounds, and makes it possible to only refer a child under 12 to a children’s hearing on welfare and protection grounds. It provides specific investigatory powers for the police, to enable incidents of seriously harmful behaviour by under 12s to be investigated.

Hate Crime

Hate crime is the term used to describe behaviour which is both criminal and rooted in prejudice or which is intended (or can be considered) to stir up hatred. In Scotland, the law currently recognises hate crime based on prejudice towards the following groups:

• disability
• race
• religion
• sexual orientation
• transgender identity.

The Hate Crime and Public Order (Scotland) Act 2021 will extend protection to include prejudice against age and variations in sex characteristics once commenced in April 2024. Where GBV occurs that is also linked to prejudice towards one of the above groups, this could also constitute a hate crime.

At present, although it is acknowledged that women’s experiences of hate crime in society can be amplified by misogyny, the intention is not to extend the hate crime provisions to apply to the characteristic of sex. It is thought that the impact of misogyny requires a different approach in criminal law, and separate legislation is expected to be introduced to the Scottish Parliament in 2024.

Policy

This framework sits within the context of GIRFEC and the National Child Protection Guidance for Scotland. This document takes account of a range of policy approaches, throughout.