Anti-bullying guidance for adults working with children and young people

Appendix 1

The legal framework and policy landscape

There are a number of legal obligations on education authorities and schools that must be considered as part of their approach to preventing and responding to bullying.

Legal framework:

The United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024 (the “UNCRC Act”)

Following the introduction of the UNCRC Act, it is now unlawful for a public authority in Scotland, which is likely to include education authorities and some schools, to act (or fail to act) in connection with a relevant function, in a way which is incompatible with the UNCRC requirements. Although there is not an express right not to be bullied within the UNCRC, a number of rights are upheld through the furtherance of anti-bullying work. This includes the right of every child to live free from violence, abuse, and neglect, which includes protection from violence committed by other children, and places emphasis on their rights to education, health, and participation in decisions affecting their lives. Grounding anti-bullying efforts in this framework of rights ensures a holistic approach that respects and protects the dignity and wellbeing of every child, and reinforces the importance of creating safe, inclusive, and supportive environments where children can thrive.

The UNCRC requirements as incorporated by the UNCRC Act, should be considered by all public authorities in Scotland who are carrying out a relevant function, as set out in the Act. However, public authorities are encouraged to take a children’s rights approach regardless of the legal source of their duties. The UK has been a signatory to the UNCRC since 1991 and regardless of the scope of the legal duties in the UNCRC Act, the UNCRC is at the heart of GIRFEC and the Scottish Government’s commitment to ensuring that all children and young people have the best possible start in life.

Schools and education authorities should avoid basing policies on a single UNCRC article without considering broader implications. The UNCRC supports taking effective action against bullying to protect children’s health and safety, and education authorities should take all appropriate measures to protect children from violence, including peer violence.

Equality Act 2010

The Equality Act 2010 protects individuals with protected characteristics (age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation) from discrimination, victimisation and harassment and supports progress on equality. The Equality and Human Rights Commission has published guidance on the Equality Act 2010. Discussion of the applicability of the Equality Act 2010 in relation to prejudiced-based bullying is contained at Appendix 2.

Education authorities and some schools in Scotland are subject to the Public Sector Equality Duty (PSED).^‹ Public Sector Equality Duty: specific duties in Scotland | EHRC (equalityhumanrights.com)› This comprises the general equality duty as set out in the Equality Act 2010, and the Scottish specific equality duties which are set out in the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012 (2012 Regulations). The general equality duty requires due regard in the exercise of functions to the need to eliminate unlawful discrimination, advance equality of opportunity and foster good relations. The purpose of the specific equality duties is to help public authorities better perform the general equality duty. Education authorities and the schools that are subject to the PSED have an obligation to ensure that policies aimed at preventing bullying or responding to the consequences of bullying meet the needs of the general equality duty.

Not ensuring consideration of equality can lead to unlawful discrimination, greater inequality and worse outcomes for particular groups of people in our communities. The general duty requires equality considerations be built into the design of policies and practices and the delivery of services, and for these to be kept under review. The EHRC has issued guidance on the PSED for Scottish public bodies.

Listed authorities, including education authorities and some schools, have legal obligations under the PSED as service providers and employers. Of note when developing and implementing policies to address bullying is the specific duty requirement to assess the equality impact of proposed and revised policies and practices (regulation 5 of the 2012 Regulations).

Chapter 6 of the technical guidance on the Public Sector Equality Duty: Scotland describes what is required from public bodies in carrying out an equality impact assessment. It sets out a number of steps including assessing the potential impact by considering whether the equality evidence indicates potential differential impact on each protected characteristic group or provides an opportunity to improve equality in an area; taking account of results in developing proposals and ensuring due regard when making decisions about the policy and its implementation, documenting decisions, publishing results and monitoring the actual impact of the policy.

Online bullying

There are various legal provisions designed to protect individuals from online harassment, abuse, and harm. Some online behaviour may be illegal under the following legislation:

1. The Equality Act 2010: this Act prohibits discrimination, harassment, and victimisation based on protected characteristics, such as race, disability, and sexual orientation, which can encompass certain forms of online bullying.

2. The Communications Act 2003: Section 127 of this Act makes it an offence to send grossly offensive, obscene, or menacing messages through public electronic communications networks.

3. The Malicious Communications Act 1988: this Act covers the sending of letters or other articles with the intent to cause distress or anxiety, including online communications.

4. The Protection from Harassment Act 1997: this Act provides protection against a course of conduct amounting to harassment, which can include repeated online bullying incidents.

5. The Defamation and Malicious Publication (Scotland) Act 2021: this Act modernises the law on defamation, allowing individuals to seek redress for harm caused by false and damaging online statements.

6. The Abusive Behaviour and Sexual Harm (Scotland) Act 2016:^‹ Abusive Behaviour and Sexual Harm (Scotland) Act 2016 (legislation.gov.uk)› criminalises the non-consensual sharing of intimate images.

7. The Online Safety Act 2023: creates a number of new offences, including encouraging or assisting serious self-harm, cyberflashing, sending false information intended to cause non-trivial harm, threatening communications, intimate image abuse.

These legal provisions can empower parents, young people, schools, authorities, and Police Scotland to take action against online bullying. Understanding that these laws exist can help adults working with, or caring for, children and young people to recognise when behaviour crosses legal boundaries and to take appropriate steps to protect them.

Legislation relevant to aspects of online safety, including the safe and responsible use of mobile phones, can be found in Appendix C5 of the Scottish version of the online safety policy tool for schools, 360 Degree Safe Scotland. The 360 Degree Safe Scotland self-review tool is free to use and is intended to help schools review their online safety policy and practice.

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 Hate Crime and Public Order (Scotland) Act 2021 criminalises behaviour based on prejudice towards those with the following characteristics:

• age
• disability
• race
• religion
• sexual orientation
• transgender identity
• variations in sex characteristics.

Where bullying occurs that is also linked to prejudice towards one of the above groups, this could also constitute a hate crime^‹ Information note on hate crime›, under certain circumstances based on conduct and motivation.

Bullying can be motivated by prejudice similar to hate crime. The distinction between bullying and hate crime is that the behaviour motivated in prejudice must be criminal in nature, such as assault, graffiti or a breach of the peace. For example, damage to property through graffiti may constitute a crime and this may be aggravated by prejudice towards a relevant characteristic. Sharing of discriminatory materials may, in some cases, constitute an offence of stirring up hatred.

The Lord Advocate has issued guidelines about which category of offence will be reported to the Procurator Fiscal for consideration of prosecution. Children who do not come within these guidelines may be referred to the Children’s Reporter or made subject to Police direct measures, depending on the circumstances. The Procurator Fiscal and the Children’s Reporter discuss cases which are subject to joint referral and the Procurator Fiscal will decide where the case is best dealt with.

Age of Criminal Responsibility

Some behaviour 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 2019 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.

Policy landscape

This guidance takes account of the wider policy context that supports children and young people’s health and wellbeing.

Some of the other key drivers for the current guidance are:

• Getting it Right for Every Child
• National Child Protection Guidance for Scotland 2021 – Updated 2023
• Learning in Health and Wellbeing, including Relationships, Sexual Health and Parenthood (RSHP) Education
• Adverse Childhood Experiences (ACEs) and Trauma
• One Good Adult: Job Description

Professional Standards

Many professionals who play a role in the lives of children and young people will be governed by a set of professional standards. These include:

• the General Teaching Council for Scotland – The Professional Standards for Scotland’s Teachers and Code of Professionalism and Conduct (CoPAC)
• the Common Core of Skills, Knowledge and Understanding and Values for the ‘Children’s Workforce’ in Scotland
• the Scottish Social Services Council Codes of Practice
• the Health and Social Care Standards

The values and principles set out by the Standards Council for Community Learning and Development for Scotland are in step with this revised National Approach.