UNCRC (Incorporation) (Scotland) Act 2024 - part 2: statutory guidance

Annex F. Glossary of key terms

Acts of the Scottish Parliament (ASPs)

An Act of the Scottish Parliament is primary legislation scrutinised and passed by the Scottish Parliament.

Appropriate remedy

A remedy, in the context of court proceedings, means when a court determines that there has been an unlawful act that requires addressing. Examples of a remedy include enforcing a right, imposing a penalty, or making an order to compensate an individual or individuals for the harm inflicted upon them as a result of the unlawful act. Remedies can be pursued to enforce human rights.

The UN Basic Principles and Guidelines on the Right to a Remedy provide a number of remedies where human rights have been breached, including, restitution, rehabilitation, satisfaction, and a guarantee of non-repetition

An “appropriate” remedy in the context of the UNCRC requirements refers to the adequate, effective and prompt remedy for breaches of children’s rights .

Article

The UNCRC sets out children’s rights across a series of 54 “Articles”. The first 42 Articles cover all aspects of a child’s life and set out the civil, political, economic, social and cultural rights that all children have. Articles 43–54 cover how adults and governments must work together to make sure all children can enjoy all their rights.

ASP Amendment to a UK Act

An Act of the Scottish Parliament can insert provisions into Acts of the UK Parliament, or amend or repeal provisions in an Act of the UK Parliament, when they relate to matters devolved to the Scottish Parliament. When this happens, the inserted or amended provisions then form part of the UK Act of Parliament itself, because this is the ‘operative’ part of the legislation.

Child

For the purposes of the duties outlined in this guidance, an individual is a child until their 18th birthday.

Children’s human rights approach

This approach uses the UN Convention on the Rights of the Child as the framework for working with and for children and young people. It has the goal of promoting and securing the full range of children’s human rights and places children and young people at the centre of policy development, as well as the design, delivery and evaluation of services.

Children’s services plan

This refers to the document which must be prepared every three years by a local authority and the relevant health board, under the terms of Part 3 (Children’s Services Planning) of the Children and Young People (Scotland) Act 2014.

Child rights and wellbeing impact assessment (CRWIA)

A Child Rights and Wellbeing Impact Assessment (CRWIA) is a process, tool and report which is used to identify, research, analyse and record the anticipated impact any proposed decision, including policy, projects, service and budgeting decisions relating to the rights and wellbeing of children and young people. Therefore, CRWIAs (and other impact assessments) should be used to inform decision making and thus should be started as early as possible in the development process so necessary changes can be made from evidence gathered.

From 16 July 2024, Section 17 of the UNCRC Act will legally require all Scottish Ministers to prepare and publish a CRWIA in respect to all new Bills, most Scottish Statutory Instruments, covid-19 related school closures, and all decisions of a strategic nature that relate to the rights and wellbeing of children. While the s.17 duty does not apply to public authorities, CRWIAs are a useful tool to aid decision making and could assist Public Authorities in preparing their children’s rights report under section 18 of the Act.

Childrens rights scheme

The UNCRC Act requires Scottish Ministers to publish a Children’s Rights Scheme setting out the arrangements Ministers have made or propose to make to ensure compliance with the compatibility duty and to secure better or further effect of the rights of children more generally. Ministers must consult on the Scheme, lay it before the Scottish Parliament, and thereafter publish it. Scottish Ministers will then be required to report on the Scheme, including actions being taken by the Government in respect of it, on a regular basis. The Scheme aims to aid transparency and scrutiny of how the Scottish Ministers fulfil their obligations under the Act.

Children’s rights reports

This refers to the reports that certain listed public authorities have a duty to prepare under Part 3 (section 18) of the Act.

Concluding observations

After reviewing the steps States Parties have taken to implement the UNCRC, the Committee on the Rights of the Child will, in a closed meeting, agree on written “Concluding Observations” which include suggestions and recommendations.

The Concluding Observations usually contain the following: introduction; positive aspects (including progress achieved); factors and difficulties impeding the implementation; principal subjects for concern; suggestions and recommendations addressed to the State party.

Days of General Discussion

Days of general discussion (DGDs) are organised by the UN Committee to foster a deeper understanding of the contents and implications of the Convention for specific articles or topics. They are held every two years.

Representatives of governments, non-governmental organisations, United Nations human rights mechanisms, United Nations bodies and specialised agencies, national human rights institutions, the business sector, as well as individual experts and children are invited to take part.

A full list of previous DGDs.

Functions of a public nature

Public functions are generally understood to be functions performed for the collective benefit of the general public. For Human Rights and Equality Duties, the term ‘public function’ “refers to things that a public body or someone acting on its behalf does when delivering a public service or carrying out activities that are public in their nature. (See section 4.3.1: Definition of functions of a public nature)

General comments

“General comment” means a publication prepared by the Committee under its rules of procedure^[49].

The Committee adopts general comments based on specific articles, provisions and themes of the UNCRC to assist States Parties in fulfilling their obligations under it.

Committee members may propose at any time that a general comment relating to a specific article, provision or theme be prepared. The Committee sometimes decides to develop a general comment on an article, provision or theme that has been discussed earlier in one of its days of general discussion (DGD).

Optional Protocol

An Optional Protocol is an additional UN legal agreement that complements and adds to an international treaty after its original adoption.

The UK Government has ratified two of the three Optional Protocols to the UNCRC. The first Optional Protocol is on the involvement of children in armed conflict and the second Optional Protocol is on the sale of children, child prostitution and child pornography.

Public Authority

Bodies who meet the definition of a public authority in section 6(5) of the Act (see section 4.3.2: Definition of public authority).

“Core” public authorities carry out functions which are clearly of a public nature (such as social care, housing, health and education which are publicly funded). For these authorities there is no need to distinguish between private and public functions as all of their functions are considered to be of a public nature. Many of these are listed authorities under section 16 of the Bill and examples include local authorities, government departments, the police and health authorities.

“Hybrid” public authorities are those who carry out a mixture of public and private functions. This may include bodies from the private, voluntary and independent sector. Their functions will only fall within the scope of the Bill in relation to their functions which are of a public nature. “Hybrid” public authorities who carry out a mixture of public and private functions will need to assess when and how the duty applies to their functions.

State Party

For the purpose of this guidance, the references to “State Party” or “States Parties” are to be read as “Any Scottish public authority or cross border public authority carrying out Scottish functions other than any function that relates to the inclusion of persons in non-executive posts on boards of Scottish public authorities with mixed functions or no reserved functions”^[50]

UNCRC

This refers to the United Nations Convention on the Rights of the Child. This is the international treaty which sets out the civil, political, economic, social and cultural rights to which all children are entitled.