Progressing the human rights of children in Scotland: 2018 report

3. Civil Rights and Freedoms

Relevant UNCRC Articles: 7, 8, 13-17

This cluster focuses on children’s civil rights and freedoms, including children’s right to move freely in public space, to access information, and to privacy.

3.1 Right to an Identity

Reform of the Gender Recognition Act 2004 is one of the major equality priorities for the Scottish Government. A consultation proposing to reform the Act to streamline the legal gender recognition process by removing unnecessary and intrusive requirements took place between November 2017 and March 2018. The consultation also sought views on the potential options for younger people and for people who do not identify as men or women.

3.2 Religion in Schools

Religious and Moral Education (and Religious Education in Roman Catholic Schools) is one of the eight core areas of Curriculum for Excellence and Religious Observance in both contexts is an important whole-school activity. Both contribute to the development of the knowledge, understanding and skills necessary to enable children and young people to be successful learners, confident individuals, effective contributors and responsible citizens.

Revised guidance on Religious Observance was issued on 27 March 2017. The guidance is intended to assist local authorities and schools in the planning and delivery of Religious Observance. The main revision was the importance of considering the views of children and young people in decisions about exercising the parental right of withdrawal from Religious Observance. The guidance makes clear that Religious Observance in schools needs to be developed in a way which reflects and understands the increasing diversity in the range of faith and belief traditions represented in Scotland. It also stresses that schools should use their self-evaluation and the school improvement plan to ensure arrangements for Religious Observance are regularly reviewed and continually improved, taking account of the views of staff, parents, pupils and partners. The revised guidance on Religious Observance should be read in conjunction with Curriculum for Excellence briefing paper 16 – Religious Observance (Time for Reflection).^[41]

As part of the UNCRC audit process, the Scottish Government is considering ways in which children’s rights under the UNCRC can be given better or further effect across individual policy areas, including in relation to religious observance in schools.

3.3 Right to Information

The Scottish Government is committed to empowering everyone regardless of age and circumstance to access the internet creatively, knowledgably and fearlessly. The rollout of fibre broadband continues, with over 900,000 homes and businesses now able to connect to faster broadband, through the Digital Scotland Superfast Broadband (DSSB) programme, with 95% of Scotland having access to faster broadband by the end of 2017. In addition to this, the PfG 2017-18 made a commitment, unique within the UK, to deliver 100% superfast broadband access across Scotland by 2021. Any home or business that will not have superfast broadband delivered commercially or through programmes such as DSSB will be eligible for investment.

The Scottish Government is aware that the provision of connectivity, and the opportunities it represents, needs to be balanced with age appropriate tools and guidance to access information online safely and confidently and to protect privacy. In July 2015, the First Minister signed the 5Rights coalition on behalf of the Scottish Government. The right to know who holds personal information in a digital format, what it is used for and to actively give and remove permissions of access and use underpins 5Rights.

In May 2017, the Young Scot 5Rights Youth Commission presented evidence based recommendations in their Our Digital Rights^[42] report (the word ‘digital’ is scored out as the offline and online worlds are two equal and intertwined aspects of young people’s lives) on how everyone – industry, public services, third sector organisations, parents, carers, schools, educators, youth workers, children and young people – can take shared responsibility to realise the rights of children and young people in the digital world. The recommendations include: greater focus on digital literacy in education; limitations to the amount of data collected from young people online; and a centralised point for young people to review and manage their digital footprints.

Building on the foundation of Our Digital Rights, the Scottish Government, in partnership with young people and a range of organisations across all sectors, is developing an overarching ethical framework to rights in the digital world, not just for young people, but for everyone. Further information on measures to support the safety of children and young people online is provided at section 4.3.

3.4 Information Sharing

In July 2016, the Supreme Court ruled that Part 4 of the CYP Act, as enacted, was not compatible with Article 8 of ECHR. As a consequence of this, Parts 4 (Named Person) and 5 (Child’s Plan) of the Act did not come into force as planned on 31 August 2016. Following a three month period of engagement, including with children and young people, the Scottish Government published the Children and Young People (Information Sharing) (Scotland) Bill on 20 June 2017, which sought to make changes to the CYP Act, in order to address the Supreme Court’s judgement. On the 13 December 2017, Parliament voted to support the Committee’s request that Stage 1 of the Bill be extended to be open ended, while the Committee awaits the Scottish Government providing them with an authoritative draft Code of Practice that they can consider alongside the Bill.

On 6 November 2017, the Deputy First Minister announced that a Getting it right for every child Practice Development Panel would be established. Ian Welsh, CEO of the Health and Social Care Alliance, was appointed independent chair. The Panel, which met for the first time on 13 February 2018, was set up to develop and produce, by consensus, an authoritative draft Code of Practice for information sharing and provide recommendations on Statutory Guidance and other materials required to support commencement of Part 4 (Provision of Named Persons) and Part 5 (Child’s Plan) of the CYP Act.

The authoritative draft Code will be presented to the Deputy First Minister, who will then forward it on to the Education and Skills Committee, enabling them to resume Stage 1 of the Children and Young People (Information Sharing) (Scotland) Bill.

3.5. Biometric Data

In March 2018, the Independent Advisory Group on the Use of Biometric Data in Scotland, established by the Cabinet Secretary for Justice and chaired by John Scott QC, published its Report on the use of biometric data and rules around retention, including specific recommendations for children aged 12-17. The report aims to provide a clear basis for ensuring that Scotland’s approach to the use of biometric data and technology strikes a balance between protecting individuals’ human rights and supporting effective law enforcement.

The Scottish Government’s response to the Report was published in March 2018^[43] and was followed up with a consultation in the summer of 2018. The Scottish Government agreed with the advisory group that there are strong arguments for taking a different approach to children aged between 12-17 to ensure that their biometric data is taken, used and retained in a proportionate manner that reduces any unintended negative risks or consequences. This is consistent with other Scottish policy approaches including Getting it right for every child and the Whole System Approach for Children and Young People who Offend. The Age of Criminal Responsibility (Scotland) Bill, which was introduced on 13 March 2018, sets out arrangements for taking and using biometric data from children under 12.

The Scottish Government will liaise with Police Scotland, SPA and other stakeholders to develop a more proportionate approach to taking, using, retaining and disposing of biometric data from children. The PfG 2018-19 confirmed that a Biometric Data Bill will be introduced to Parliament in 2019. The Bill will deliver enhanced oversight of biometric data and techniques used for the purposes of criminal justice, to ensure an effective, proportionate and ethical approach to the use of biometric data which commands the confidence of the public and professionals.

3.6 Use of Mosquito Devices

The Scottish Government is opposed to the use of mosquito anti-loitering devices. It does not believe use of the device is consistent with its approach to tackling antisocial behaviour, nor is it consistent with the Scottish Government’s desire to promote strong and supportive communities where people’s rights are recognised and respected.

To improve understanding of the impact of the device on young people, the Scottish Government worked with Young Scot and the Scottish Youth Parliament to conduct a survey of young people’s experiences of the mosquito device. The survey, which closed on 4 September 2017, received 725 responses. Young Scot published the findings in a report on 12 March 2018. The Scottish Government will give full consideration to the findings and any other evidence, before taking any further action.

As there is currently no reliable evidence on the health impact of the mosquito device, Scottish Ministers wrote to the UK Government to highlight this lack of evidence and to advise on plans to ask the Health & Safety Executive to carry out a refresh of its literature review into mosquito devices. The Health & Safety Executive has declined to revisit the study or commission new research in this area.

The Scottish Government is working towards a position where it can confidently state that mosquito devices are not used within the public sector estates in Scotland. To this end, Scottish Ministers have written to all local authorities, and other public bodies, reminding them of the Scottish Government’s position on the use of mosquito anti-loitering devices. The Scottish Government has also extended this initiative by highlighting its opposition to the use of mosquito devices to include organisations representing the business and private sectors.

3.7 Anti-Social Behaviour Orders (ASBOs)

A data collection exercise in relation to the use of ASBOs was completed in March 2017. This included the collection of information from local authorities on the number of ASBOs sought and granted for 12-15 year olds over a 5 year period. The Scottish Government is continuing to discuss with local authorities current data systems for monitoring the use of measures to respond to anti-social behaviour involving children and young people, including the criteria and proportionality of their use, with the aim of ensuring that ASBOs and other measures are used appropriately and proportionately.

3.8 Stop and Search

The Code of Practice on the use of Stop and Search, which was developed by the Independent Advisory Group on Stop and Search, came into force on 11 May 2017 following a full public consultation. From this date, all stop and searches must have a statutory basis.

Chapter 7 of the Code is targeted specifically at children and young people and sets out additional consideration for police officers on the conduct of searches in cases where a child or young person is involved. In taking a decision to search a child or young person, police officers must treat the need to safeguard and promote the wellbeing of that child as a primary consideration. Police officers should use age-appropriate terms when engaging with a child or young person. For example, if they are required to state the statutory basis for a search, they should do so by explaining this in easily understood language. A separate guide^[44] for children and young people was published on the same day as the Code.

The Code of Practice provides clear guidance to all police officers. The Code sets out that the use of stop and search powers must be necessary, proportionate and in accordance with the law and allows for greater transparency and accountability. All searches should be carried out with fairness, integrity and respect. Under section 69 of the Criminal Justice (Scotland) Act 2016, Police Scotland must publish, as soon as practicable after the end of each reporting year, information about the number of searches carried out, including details about age, gender, ethnic and national origin of persons searched.

The Independent Advisory Group on Stop and Search is currently undertaking a review of the Code of Practice on Stop and Search, funded by the Scottish Government, which is looking at (among other things) any concerns about how stop and search powers are being used on people from specific sections of the community. The Advisory Group will report to Ministers on the review findings by early 2019. If the Group recommends that any changes are needed to the Code or to legislation in order to improve the monitoring or practice of stop and search, the Scottish Government will work with Police Scotland and other stakeholders to make sure these issues are addressed. A report authored by Professor Susan McVie in February 2018, on behalf of the Independent Advisory Group, shows that in the first 6 months of the Code’s operation the success rate of searches increased by 7%, suggesting that the police are targeting searches more effectively.^[45]

The 12 month review will also cover any potential gaps in legislation around young people and alcohol, any lack of clarity in the Code or gaps in legal powers to search where this is necessary to preserve life, and any increase in the use of alternative search powers. A range of evidence will be gathered, including detailed statistical evidence from Police Scotland’s stop and search database and qualitative information on the experiences and views of police officers and young people. The review will involve input from relevant professionals and expert groups, including children and young people’s groups.