Progressing the human rights of children in Scotland: 2018 report

1. General Measures of Implementation

Relevant UNCRC Articles: 4, 42 and 44(6) (see Annex A)

This cluster group deals with structures and resources to implement the UNCRC, including legal and non-legal measures.

1.1 UK Withdrawal from the European Union

The outcome of the 2016 EU Referendum and the UK Government’s approach to withdrawal from the EU provide important context for the General Measures of Implementation. The Scottish Government has made clear its view that continued membership of the EU is the best option for Scotland. Following the referendum, in which a majority of people in Scotland voted to remain within the EU (62% to 38%), the First Minister established a Standing Council on Europe, to consider in detail the possible impact of Brexit on human rights and social protections and the possible options open to Scotland. The Scottish Government set out in Scotland’s Place in Europe (2016), its distinctive response and proposed approach to Brexit. This was re-emphasised and enhanced in Scotland’s Place in Europe: People, Jobs and Investment (2018).

As well as the economic benefits of remaining within the European Single Market, the Scottish Government has prioritised in its dialogue with the UK Government the need to maintain and advance the individual rights and social protections currently provided by EU law and membership, including for children and young people.

“Young People must not continue to be locked out of the rest of this [Brexit] process… We should have a far more official, meaningful representative voice at the table moving forward.”

Jack N, MSYP, Rights Review Event, 2018

EU law currently provides children and young people with significant legal protections. The Scottish Government is clear that any Brexit deal must take explicit account of the interests of children and young people and fully secure the existing rights contained in EU law and identified in the UNCRC and other international human rights treaties. The PfG 2017-18 states explicitly that the Scottish Government will oppose the proposed removal of the European Charter of Fundamental Rights from our laws contained in the EU Withdrawal Bill and oppose any attempt by the UK Government to undermine the Human Rights Act (HRA) 1998.

Given the potential impact on their current rights, the Scottish Ministers are committed to hearing the views of children and young people in the ongoing Brexit process. MSYPs raised their concerns about the impact of Brexit on the rights of children and young people when they met with Cabinet Ministers in February 2017 and again in March 2018 and at the Rights Review Event, which SYP organised in April 2018. On 12 June 2018, the Scottish Government announced that funding would be provided to Children in Scotland to establish a Children and Young People’s Panel on Europe. The Panel, which supports the participation of children aged 8-12 and young people aged 13-18, was successfully launched in August 2018 and has met a number of times, including with Mr Russell and with the First Minister’s Standing Council on Europe. The Panel includes representation from a range of children and young people, including those from rural and island communities and those with additional support needs.

1.2 Human Rights Act 1998

The Human Rights Act 1998 (HRA) incorporates the core rights contained in the ECHR into domestic law. It requires public authorities, including the government and courts, to act compatibly with the Convention rights, and permits alleged breaches of human rights to be heard before UK courts. If all other avenues have been exhausted, cases may also be taken to the European Court of Human Rights.

Scottish Ministers have consistently opposed UK Government plans to replace the HRA with a “British Bill of Rights” on the basis that it will diminish the UK’s reputation overseas, damage relations with devolved governments, and impact negatively on how people, including children and young people, realise their rights. The UK Government has confirmed that any plans to replace the HRA with a “British Bill of Rights” have been postponed until after the completion of the EU withdrawal process.

1.3 Furthering Human Rights in Scotland

First Minister’s Advisory Group on Human Rights

The Scottish Government is continuing to take forward measures within its devolved powers to deliver a modern, inclusive Scotland which protects, respects and realises internationally recognised human rights. Following from announcements in the PfG 2017-18, the First Minister established an Advisory Group on Human Rights to work independently of the government to develop recommendations on how Scotland can continue to lead by example on human rights, including economic, social, cultural and environmental rights.^[5] The Group presented its report and recommendations to the First Minister on Human Rights Day 2018 (10 Dec). The Scottish Government will now work with external partners, across civil society and including the wider public sector, to establish a National Task Force to take forward the key recommendations, starting in 2019. The long-term vision presented by the Group is for a new Act of the Scottish Parliament which brings internationally-recognised human rights into Scots Law and creates a new human rights framework for all of the people of Scotland.

“I want to make children’s rights more ‘official’.”

Member of the Children’s Parliament, Rights Event, 2018

Commitment to Incorporate the Principles of the UNCRC

The PfG 2017-18 included the commitment to undertake a comprehensive audit on the most effective and practical way to further embed the principles of the UNCRC into policy and legislation, including the option of full incorporation into domestic law. The audit is under way and the intention is to publish that work in spring 2019. To further strengthen children’s rights in Scotland, Scottish Ministers announced in the PfG 2018-19, a commitment to incorporate the principles of the UNCRC into domestic law.

Evidence shows that there are different ways to achieve this, and that there are some particular complexities in relation to the UNCRC which require to be worked through. It will be important to develop a model that will deliver the best outcomes for children, young people and families in Scotland. To deliver this commitment, the Scottish Government will consult widely in 2019, including with children, young people and families, local authorities and other public bodies across Scotland, as well as third sector partners and the judiciary. The Scottish Government will also consider where it may be possible for Scots law to go further than the Convention requires, where that is demonstrably beneficial for children and young people. In the interim, the Scottish Government will continue to consider ways in which rights under the UNCRC can be given better or further effect across individual policy areas.

1.4 Legislation

In line with the General Measures of Implementation, Ministers have also taken steps within the reporting period to further ensure that appropriate legislative measures are in place to support children and young people in Scotland in realising their rights. For example, a number of statutory measures have been taken forward since June 2015 which strengthen how children and young people across Scotland experience their rights, including the Human Trafficking and Exploitation (Scotland) Act 2015, the Scottish Elections (Reduction of Voting Age) Act 2015 and the Child Poverty (Scotland) Act 2017. A Scottish Government Bill to raise the age of criminal responsibility in Scotland from 8 to 12 years is currently progressing through the Parliament. A member’s Bill to provide equal protection for children from physical punishment by abolishing the defence of reasonable chastisement is also progressing through Parliament, with Scottish Government support.^[6]

Children and Young People (Scotland) Act 2014 (CYP Act)

Of particular note is the CYP Act, which seeks to establish children and young people at the heart of planning and delivery of services and which includes a number of provisions that relate directly to the UNCRC.^[7]

Commenced in June 2015, Part 1 of the CYP Act places specific duties on Scottish Ministers to keep under consideration whether there are any steps which they could take which would or might secure better or further effect in Scotland of the UNCRC and, if appropriate, to take steps identified by that consideration. The CYP Act further specifies that, in complying with these duties, Ministers must “take such account as they consider appropriate of any relevant views of children of which the Scottish Ministers are aware”. Ministers are also required to promote public awareness and understanding of children’s rights, including amongst children.

The Part 1 duties also require Ministers to report to Parliament every 3 years on relevant progress and their plans for the subsequent 3 year period. (This report and separate Action Plan have been developed in line with these duties.) These reporting arrangements, informed by the relevant views of children and young people, ensure that an action plan for taking forward children’s rights in Scotland is in place for the next 3 years (until 2021) and every 3 year period thereafter.

Since 1 April 2017, sections 2 and 3 of the CYP Act also place a duty on a wide range of public authorities, including local authorities and health boards, to report every 3 years on the steps they have taken in that period to secure better or further effect of the UNCRC requirements within their areas of responsibility.^[8] Non-statutory guidance in support of these duties was prepared in dialogue with stakeholders and published in December 2016, following a full public consultation.^[9] The first reports under these provisions will be published as soon as practicable after 1 April 2020.

Part 3 of the CYP Act requires local authorities and health boards, with the assistance of other service providers, to take a strategic approach to the design and delivery of services used by children, ensuring that they focus on improving children and young people’s wellbeing in their area. Following public consultation, the statutory guidance on Part 3 of the CYP Act, Children’s Services Planning, was published in December 2016 and disseminated widely.^[10] The first children’s services plans are now in place and cover the three year period from 1 April 2017 to 31 March 2020. Local authorities and relevant health boards are also required to jointly publish an annual report detailing how the provision of children’s services and related services in that area have been provided in accordance with the plan.^[11]

Other key provisions in the CYP Act include Parts 4 and 5, which aim to improve the way services support children by promoting cooperation between services and Parts 6 to 8, which increase the amount and flexibility of funded early learning and childcare. In addition, Parts 9 to 14: ensure better permanence planning for looked after children by improving support for kinship carers, families and care leavers; introduce corporate parenting duties to those public bodies which, in the course of their duties, are most likely to engage directly with children, families and adults; and put Scotland’s National Adoption Register on a statutory footing. These measures will be discussed later in this report.

1.5 Coordination of the Implementation of Children’s Rights

Since 2007, the Scottish Government has had a Minister with specific responsibilities for overseeing progress in relation to the rights of the child. The work of the current Minister for Children and Young People is supported by the Rights and Participation team within the Scottish Government’s Directorate for Children and Families. This team has responsibilities for the coordination and reporting on progress in Scotland in relation to children’s rights and raising awareness of the UNCRC. A key aim of the team is to promote a rights-based approach to policy development and to mainstream responsibilities for children’s rights across all portfolios of the Scottish Government. The Rights and Participation team also liaises with the UK Government and colleagues from across the devolved administrations as required on relevant UK-wide matters relating to the Convention and in the sharing of best practice.

The Rights and Participation team works closely with the Scottish Government’s Human Rights team, which coordinates Scottish Government participation in UK engagement with international monitoring mechanisms in relation to human rights treaties that have been ratified by the UK Government.

1.6 Child Rights and Wellbeing Impact Assessment

In support of the duty on Ministers to consider children’s rights under Part 1 of the CYP Act, the Child Rights and Wellbeing Impact Assessment (CRWIA), introduced in June 2015, aims to ensure that all areas of the Scottish Government consider the possible direct and indirect impacts of proposed policies and legislation on the rights and wellbeing of children and young people. The CRWIA, which was developed by a children’s rights expert, in consultation with relevant stakeholders, is promoted across the Scottish Government as a key tool in the development of policy. The views of children and young people are integral to the CRWIA process.

There is a clear Ministerial expectation that CRWIAs will be undertaken for all new policies and legislation. Training and guidance on the UNCRC and children’s rights have been made available for officials completing CRWIAs.

Completed CRWIAs are published on the Scottish Government website.^[12] Guidance on the CRWIA approach has been published for use by public authorities (and other organisations) should they wish to utilise this resource. Best practice online materials will continue to be updated. The CRWIA guidance and training tool are in the process of being updated following review.

1.7 Use of Data

The Scottish Government is aware that access to appropriate data and evidence is vital in monitoring progress on how children and young people are realising their rights and informing evidence-based policy making. Relevant statistics and research also inform the preparation of CRWIAs.

The Scottish Government works continually to further improve its data collection, to help establish a comprehensive picture of children in Scotland. Examples of data published include statistics on children’s social work, e.g. services for looked after children, child protection and young people in secure care.^[13] The data includes information about gender, age group, ethnicity, disability, etc. Statistics are also published on early learning and childcare, education outcomes for looked after children, school education, etc. New data has been developed to track participation in particular and was published for the first time in March 2018.^[14] The Scottish Government has reflected some of this data in the National Performance Framework and will be monitoring participation as a key measure in its vision for national wellbeing in Scotland.

Data published as National Statistics are subject to specific validation and are produced, managed and disseminated to high standards. Scottish Government statistical publications are accessible on the Scottish Government website. Other bodies, including the Care Inspectorate, Scottish Children’s Reporter Administration and Scottish Social Services Council, also publish statistics relevant to children and young people.

As well as statistics, the Scottish Government also commissions research on a wide range of issues relevant to children and young people. For example, Growing Up in Scotland^[15] is a longitudinal research study, tracking the lives of thousands of children and their families from the early years, through childhood, and beyond. The aim of the study is to provide information to support policy making and to provide an important resource for practitioners, academics, etc.

1.8 Consideration of Children and Young People in Budgetary Processes

Children’s rights are also considered as part of budget and resource allocation decisions. The Scottish Government, with the Scottish Parliament, have well established Budget setting and scrutiny arrangements in place that aim to ensure that decisions about revenue and capital expenditure and income are informed by both Ministers’ statutory responsibilities and key delivery priorities and outcomes.

Budget decisions and priorities in Scotland are informed by the principles set out in the Christie Commission Report on The Future Delivery of Public Services, published in 2011, including, for example, promoting a decisive shift toward prevention and greater integration of public services at local level. Under these principles, there has been an increasing focus in recent years by the Scottish Government and public bodies to direct resources towards actions that can help tackle deep rooted social and economic disadvantage. This will be further embedded by the introduction of the Fairer Scotland Duty in April 2018, which requires public bodies to have due regard to socio-economic disadvantage in all strategic decisions.

Throughout the reporting period, the Scottish Government has prioritised funding allocations to areas of expenditure that benefit children and young people and their families, including: access to health visitors; expanding funded early learning and childcare; free school meals; measures to address the poverty-related attainment gap and child and adolescent mental health services (CAMHS). The introduction of the CRWIA further ensures that policy officials within Government take account of the rights, wellbeing, and views of children and young people in considering policies and significant investment decisions.

The Scottish Government publishes an Equality Statement each year alongside its draft Budget for the year ahead. This document examines the impact of budgetary decisions across protected characteristics. From 2015, the draft Budget Equality Statement has included an expanded section on the impact of budget decisions for children and young people and their rights and wellbeing. To further assist transparency, each year, the Scottish Government submits to the Scottish Parliament detailed information of total expenditure levels and changes in spending on specific budget lines. This is known as the ‘Level 4’ Budget information, which is published by the Scottish Parliament on its website.^[16] This includes budget lines relevant specifically to children and families, including budgets for children’s hearings, preventing youth offending, support for families with disabled children, etc.

Children and young people and their families also benefit from wider budget allocations by means of block grant funding to local authorities and grant provisions to other public bodies which have discretion and flexibility in how they allocate their overall budgets, subject to their statutory responsibilities and local and national outcome commitments. Since 2007, the Scottish Government has adopted an outcomes-based approach through its National Performance Framework, focusing on the improved outcomes that it wants investment to deliver.

1.9 Children, Young People and Families Early Intervention and Adult Learning and Empowering Communities Fund

In line with the Christie Report principles, the Scottish Government’s Children, Young People and Families Early Intervention, and Adult Learning and Empowering Communities Fund (CYPFEI/ALEC) supports the third sector to use early intervention and prevention to improve outcomes for children, young people, families and communities. Launched in 2015, the Fund’s core funding has provided £14m each year to up to 118 organisations between 2016-17 and 2018-19, with an extension year for 2019-20. The Fund is supporting organisations to deliver activities which tackle inequalities and poverty, support parents and carers, improve learning and build skills.^[17] The CYPFEI/ALEC Fund also provides additional support to 30 third sector organisations with £2m of funding from 2017-18 to 2018-19 for projects to deliver fresh and innovative ideas or to scale up evidenced approaches. The Fund, which is administered by the Corra Foundation, has supported over one million beneficiaries since April 2016.

1.10 Participatory Budgeting

Participatory budgeting is recognised internationally as a way for people to have a direct say in how money is spent locally. The Scottish Government’s Community Choices Fund supports and promotes participatory budgeting nationally. This programme of support is delivered in partnership with local authorities, communities and third sector organisations, and implemented across policy areas from policing to health and social care, transport and education. Since 2014, the Scottish Government has invested £6.5m through the Community Choices Fund including programmes which have helped to involve children and young people.^[18]

The Scottish Government is encouraging partners involved in the Scottish Attainment Challenge and Pupil Equity Funding to support participatory budgeting as a way to ensure that children, parents and other citizens are involved in decisions around how Pupil Equity Funding is used. The Attainment Challenge Policy Unit has been working with colleagues in the Community Empowerment Team to discuss ways of strengthening the participatory budgeting message for example, participatory budgeting information is now included in the National Operational Guidance for Pupil Equity Funding.

1.11 Raising Awareness of Children’s Rights

“I think more people in Scotland (especially kids) need to know about their rights. If something unfair happens, then they know what to do.”

Member of the Children’s Parliament, Rights Event, 2018

The Scottish Government also aims to raise awareness and understanding of children’s rights throughout Scottish society. Ministers are aware that to achieve a Scotland where everyone knows about and understands children’s rights requires partnership working across sectors, and with children and young people themselves. The PfG 2017-18 announced the intention to commence a three-year programme to raise awareness of children’s rights. The Scottish Government is working with children, young people and stakeholders to co-design and co-deliver this programme.

For the past 3 years, the Scottish Government has included a children’s rights awareness-raising objective within the terms of grant for the core funded organisations within the CYPFEI/ALEC Fund. Since April 2017, a similar awareness raising objective has been included in the terms of general grant funding for relevant organisations. The Scottish Government also continues to raise awareness and understanding of children’s rights through the funding and support provided to key organisations that work with children and young people, including Young Scot, the Scottish Youth Parliament and the Children’s Parliament.

Relevant stakeholders have also assisted the Scottish Government in promoting and distributing, to schools, citizens advice centres and community groups, on request, a large number of copies of the easy read UNCRC information booklet UN Convention on the Rights of the Child: A Guide for Children and Young People. The booklet was updated within the reporting period.

1.12 Training on Children’s Rights

Within the Scottish Government, bespoke training on children’s rights has been made available to Ministers, Scottish Government senior officials and policy leads to further support and promote understanding of the UNCRC, the CRWIA and a rights-based approach to the development of policy. Understanding of the rights of the child is also promoted through the internal Children and Young People Community of Interest – a group of officials who are committed to the development of better, more joined-up policy for the benefit of children and young people across Scotland. Sessions have included a seminar with key stakeholders on the promotion of better engagement with children and young people and an event, led by the Permanent Secretary, on the promotion of a rights-based approach to policy development.

Schools and practitioners continue to be actively encouraged to participate in professional learning activities which help promote their understanding of the UNCRC. The two main ways that practitioners engage are through Education Scotland’s ‘Recognising and Realising Children’s Rights’ professional learning resource and through participation in UNICEF’s Rights Respecting Schools programme which has a cost attached to it.

The Common Core of Skills, Knowledge & Understanding and Values for the “Children’s Workforce” in Scotland (2012), which was developed in consultation with stakeholders, sets out the key skills, knowledge and understanding, and values that everyone should have if they work with children, young people and their families, whether they are paid or unpaid. The Scottish Government has taken steps to ensure wide awareness of this resource amongst relevant professional groups. For example, the Common Core informed the development of new practice standards and a performance and monitoring framework for the national Safeguarders Panel, which was launched in 2015. Other relevant stakeholders have also been made aware of this valuable resource.

1.13 Human Rights in Business

As well as promoting awareness of rights in the public and third sectors, Scottish Ministers are taking steps to promote human rights in business, including through the promotion of the UN Guiding Principles on Business and Human Rights (UNGPs), which were endorsed by the UN Human Rights Council in 2011. The UNGPs are based on a framework of state duty to protect human rights, business responsibility to respect human rights, and the requirement for remedy for negative human rights impacts.

The Scottish Government is working with partners to develop a coordinated plan of action in Scotland to implement the UNGPs. A national baseline assessment (NBA), which was published in October 2016^[19], sets out how law, policy and practice in Scotland aligns with the UNGPs. Further engagement with stakeholders is helping to prioritise the NBA’s recommendations and will inform the drafting of an action plan.

1.14 Scotland’s Economic Strategy

The Scottish Government will continue to focus on inclusive growth as a core priority of Scotland’s Economic Strategy to deliver increasing economic competitiveness while tackling inequality at all levels of society. In taking this forward, the Scottish Government has continued to work with its key stakeholders to develop greater awareness amongst the business community of the rights of children, including updating the strategic guidance letters for Scotland’s enterprise agencies to inform their corporate plan and operational delivery. Activity in this area will be reported as part of each organisation’s reporting function.

Human rights are also central to the Scottish Government’s commitment to Fair Work in Scotland. The Fair Work Convention, which provides independent advice to the Scottish Government on matters relating to innovation, Fair Work and the Living Wage, has a remit to drive Fair Work in Scotland. The Convention and the Scottish Government are investigating how to fully utilise public sector procurement opportunities to incorporate Fair Work, to improve the quality and security of jobs, create development opportunities and drive participation. The Scottish Government is also continuing to encourage all employers to pay the Living Wage. These initiatives are important in providing families with greater security to support, develop and care for their children.

In addition, the Scottish Business Pledge continues to promote a range of Fair Work practices, with the Living Wage at its core, to help working families achieve balance in their work and life commitments.

1.15 Public Procurement

The Scottish Government has also worked to ensure public bodies have due regard to equality duties in public procurement activities. Those bidding for public sector contracts are required to operate within social, environmental and labour laws and obligations. The Scottish Procurement Policy Note 9 explains the requirement to include conditions to ensure compliance with such laws, describes what public bodies should and can do at each stage of the procurement process, and includes model clauses. The Scottish Government will continue to work to promote equality duties and human rights obligations in public procurement activities and to work within the public procurement regulations to ensure that public contracts are not awarded to bidders who do not comply with applicable obligations in the fields of social, environmental and labour law. This duty extends down the supply chain, helping to ensure that all businesses involved in contracts comply with relevant regulations for employment and human rights duties.

1.16 International Development

As well as supporting children to realise their rights here in Scotland, Scottish Ministers are committed to promoting children’s rights internationally. International relations are reserved to Westminster under the Scotland Act 1998 (the 1998 Act). However, Scottish Ministers may, under the 1998 Act, assist Ministers of the Crown with international relations, including international development assistance.

The Scottish Government’s International Development work across our partner countries is focused on poverty alleviation and the achievement of the UN Sustainable Development Goals. Scotland also adheres to the principles of the Paris Declaration on Aid Effectiveness. The Scottish Government does not provide any bilateral funding direct to other governments, including direct to schools, but has instead continued to channel funds through a range of Scottish based organisations, such as registered charities, universities, and NHS Boards, with a strong emphasis on respectful partnership. All grant recipients are required to demonstrate that they embed a human rights approach in their work in order to be eligible for funding from the Scottish Government’s international Development Fund.

The Scottish Government’s “Global Citizenship: Scotland’s International Development Strategy”, published in December 2016, provides the framework for Scotland’s contribution to the fight against global poverty, inequality and injustice and promotes sustainable development. The Scottish Government is also committed to implementing the Sustainable Development Goals via the mechanisms of the National Performance Framework (NPF) in order to reduce inequality both domestically and internationally. Significant investments during the reporting period include the following:

The Malawi Development Programme with £11.5m of funding for the period 2018-23, including a project providing training for people (including youths) with disabilities, and another to provide young people with access to justice;

funding of £1.2m during 2016-19, to enable Police Scotland to deliver capacity building work focusing on child protection and gender based violence with their counterparts in
Sub-Saharan Africa;

£15m of funding for the Zambian and Rwandan Development Programmes, for the period 2017-22, including work to teach children about good sanitation practice and building the capacity of young people to lead communities to achieve increased food and livelihood security; and

in Pakistan, inspired by Malala Yousafzai, the Scottish Government is funding scholarships to support young women to go to university and children to attend school, including a particular focus on supporting children with disabilities.

The Scottish Government has also provided Scottish based NGO, Mary’s Meals, with over £1m for a school feeding programme in Zomba, Malawi.