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

Part 2 of the UNCRC Act

This section explains Part 2 of the UNCRC Act.

4.1 Introduction to Part 2 and overview of guidance

This section relates to Part 2 of the Act. It briefly introduces the intentions of this part before providing an overview of the content of the subsections that follow.

As outlined above, the aim of Part 2 of the Act is to ensure that children’s rights in Scotland are protected to the fullest extent possible through the requirement for all public authorities, including Scottish Ministers, not to act incompatibly with the UNCRC requirements (as defined in section 1 of the Act and explained in section 4.4 below). Part 2 of the Act also outlines legal remedies should they fail to do so and strengthens the powers of the Commissioner and the SHRC to bring or intervene in legal proceedings in relation to potential breaches (further explained in section 4.2 below).

The Act not only places legal duties on public authorities but also intends to improve the culture of children’s rights in Scotland. Non statutory guidance on taking a children’s human rights approach aims to support this shift by introducing how public authorities can build on their existing practice to secure better or further effect of the rights of children.

This guidance on the duties placed on public authorities by section 6 of the Act begins with definitions of specific terms within the Act (such as ‘public function’) and provides information about how the duty applies to the functions of public authorities. It also clarifies how the duty applies in relation to the public, voluntary and independent sectors.

Annexes A to C include an overview of some of the conceptual aspects underlying children’s rights and the UNCRC, e.g. terms such as ‘progressive realisation’ and ‘evolving capacities’ and how these can be understood in relation to the UNCRC requirements; outline sources for interpretation of the UNCRC and its Optional Protocols, such as the General Comments and Days of General Discussion organised by the CRC; and include, a decision-making route map as well as a compatibility review framework, both of which can be used by public authorities to analyse when and how the duty applies to their services and functions.

Public authorities may also wish to consult non-statutory guidance on taking a children’s human rights approach (CHRA), which includes suggestions on how to facilitate participation of children in decision-making, considerations around inclusive communication, raising awareness of child rights, budget allocation and the potential benefits of using a Child Rights and Wellbeing Impact Assessment (CRWIA) tool. While there is no legal requirement for public authorities to follow these suggestions, this guidance was published to help promote good practice.

Before we move on to those parts of the guidance specific to section 6, we will provide a brief overview of sections 7 to 10 of Part 2 of the Act which outline the provisions in the Act for legal challenges from children and their families, and the strengthened powers of the Commissioner and the SHRC at sections 11 and 12. The processes for remedies that can be awarded by the courts as well as the circumstances under which this can take place are also briefly outlined here.

4.2 Remedies for unlawful acts (sections 7 to 10)

The Act enables children who believe that public authorities have acted or intend to act incompatibly with the UNCRC requirements defined by the Act, to seek legal redress through the courts. This will provide a route to achieving justice for children and their families.

While the preference is to resolve disputes and complaints without the need to go to court (see sections 4.6.1 and 4.6.2 of non-statutory guidance on taking a children’s human rights approach, on child friendly complaints procedures and advocacy), litigation can play an important role in realising child rights and also has the potential more broadly to positively influence practice, policy and the law.

It is recognised that for many children seeking justice via a court or tribunal would be a daunting prospect and may not be their preferred option. The child friendly complaints process guidelines of the Scottish Public Services Ombudsmen (SPSO) (to be issued in Spring of 2024) will give consideration to how best to support children and their caregivers to potentially resolve complaints before these are lodged through the judicial system.

The Act contains three sections that contain the processes for seeking a remedy:

1. section 7 (“Proceedings for unlawful acts”) sets out the right to bring proceedings against a public authority which has acted (or proposes to act) unlawfully in relation to the UNCRC requirements. The UNCRC requirements may also be relied on in the context of other legal proceedings;

2. section 8 (“Judicial remedies”) deals with the possible remedy or relief that a court or tribunal could grant on finding that a public authority has acted, or was proposing to act, incompatibly with section 6(1); and

3. section 9 (“Restriction on proceedings in respect of judicial acts”) clarifies the process and parameters for seeking redress in respect of a judicial act.

Each section will now be explained in turn with an emphasis on the implications this may have for public authorities. This will be followed by an explanation of sections 11 and 12 on the new powers for the Commissioner and SHRC.

Proceedings for unlawful acts (section 7)

Every child can challenge actions (or planned actions) that breach the UNCRC requirements through the courts in respect of breaches that take place after the duties in the Act come into force. The UNCRC Act provides that where a public authority has been found to have acted (or proposed to act) in a way that is incompatible with the UNCRC requirements, the courts can award a remedy within its powers as it considers effective, just and appropriate. Damages may be awarded by a court or tribunal which has the power to award damages in civil proceedings. Children are in the process of growing, developing and understanding and therefore may not have capacity or access to raise legal proceedings. This is particularly so for children with additional needs or those experiencing violence, abuse and trauma.

Legal proceedings for an alleged breach of section 6(1) must generally be raised within one year from when the act complained of took place (section 7(9)) – though this is subject to any other rule in relation to the relevant procedure which imposes a stricter time limit (section 7(10)). There is an exception to the one-year time limit for an alleged breach which may have taken place at any point before a child reaches the age of 18 (section 7(11)). This means that a claimant who wishes to bring proceedings for a breach under the UNCRC Act can do so at any point during their childhood or for the period of one year after they have turned 18. In calculating the three month Judicial Review time limit, any time during which the person by or on whose behalf the application was made was under 18 is to be disregarded (section 7(13)). In addition to that, section 7(12) allows the court to disregard the year time limit at section 7(9) if it considers it equitable to do so.

The lack of a time-bar for most actions brought during the period whilst a claimant is a child means that proceedings could be brought against public authorities for a relatively considerable period of time after an alleged breach took place. Public authorities need to be aware of this possibility and may wish to consider any implications for their record and information management systems. It would be advisable to maintain a robust audit trail in relation to decision-making and service delivery.

Judicial remedies (section 8)

The Scottish Government recognises that it is important that relief or remedy is available for any breach of the UNCRC requirements and that children have access to effective remedies if such a breach occurs.

Courts or tribunals may grant such remedy or relief within its powers that it considers ‘effective, just and appropriate’ on finding that a public authority has acted incompatibly with the UNCRC requirements (or failed to act which has resulted in an incompatibility with the UNCRC requirements) and so unlawfully under section 6(1) of the Act (section 8(1)). The maximum disposals available to each court or tribunal (i.e. whether or not it may award damages in civil proceedings – section 8(2)) will depend on the existing specific rules by which it is governed. The court or tribunal, in deciding whether to grant damages and the quantification of damages (if applicable), would be required to consider whether the award would be necessary (and if so, the amount) to provide “just satisfaction” to the claimant (section 8(3)) in addition to any court rules pertaining to that court.

Child’s view on effectiveness of reliefs (section 9)

Children must be given the opportunity to express their view on the effectiveness of any proposed relief, remedy or order in a manner that the child prefers (section 9(1)(a)(i)) or that would be suitable to the child if the child has not indicated a preference or it would not be reasonable in the circumstances to accommodate the child’s preference (section 9(1)(a)(ii)). The court or tribunal must have regard to any views expressed by the child, taking into account the child’s age and maturity (section 9(1)(b)). The court or tribunal is not required to comply with section 9(1) if it is satisfied that the child is not capable of forming a view (section 9(2)), however, the child is to be presumed to be capable of forming a view unless the contrary is shown (section 9(3)).

Restrictions on proceedings in respect of judicial acts (section 10)

For the purposes of the Act, courts and tribunals are included in the definition of public authorities, and they are bound by the section 6(1) duty to act compatibly with the UNCRC requirements. ‘Judicial act’ is defined by section 10(4). Judicial acts may be challenged on the basis of an alleged section 6(1) breach in certain circumstances, by way of an appeal, or in the Court of Session (including on an application to its supervisory jurisdiction if applicable) (sections 10(1)(a) – (c) and (2)).

No damages could be awarded against a court or tribunal if the judicial act which is being challenged was done in ‘good faith’ (section 10(3)).

Powers for the Commissioner for Children and Young People in Scotland and the Scottish Commission for Human Rights to bring or intervene in proceedings (sections 11 and 12)

The Act also makes provision supplementing the existing powers of the Commissioner for Children and Young People in Scotland (the ‘Commissioner’) and the Scottish Commission for Human Rights (the ‘SHRC’) to enable them to raise or intervene in proceedings under the Act.

The reason for this is to strengthen the SHRC’s and Commissioner’s existing functions, providing the power to bring litigation, with a view to ensuring that incompatibilities can be identified and brought to a court or tribunal, if necessary.

Section 11 of the Act amends the Commissioner for Children and Young People (Scotland) Act 2003, to give the Commissioner (CYPCS) the power to intervene in court proceedings in which a person claims that a public authority has acted or proposes to act unlawfully under section 6(1) of the Act (i.e. in breach of the UNCRC requirements, as incorporated in the Act). Section 12 amends the Scottish Commission for Human Rights Act 2006 to give the SHRC the same powers to intervene in such proceedings.

4.3 Definition of key terms

This section shares the definition of key terms in the Act, to support organisations to determine whether the section 6 duty is applicable to them.

4.3.1 Definition of functions of a public nature

Public functions are generally understood to be functions performed for the collective benefit of the general public. In relation to 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. An activity is public in nature if it is something that a private individual or organisation would not normally do”^[2], for example providing public health care or government policy making.

Private functions are generally understood to be acts that are conducted by individuals for their own interests or profits and are therefore not under government control. While there is always clearly an obligation to adhere to criminal law, the obligations are somewhat less clear for administrative, private and human rights law.

4.3.2 Definition of public authority

In understanding to whom the duty to act compatibly applies, it is helpful to refer to case law developed under the Human Rights Act (1998) (“HRA”) which contains a similar duty to not act incompatibly with a Convention right. Case law for the HRA distinguishes between “core” public authorities and “hybrid” public authorities. “Core” public authorities are described as “certain bodies that so obviously have the character of a public authority that it is not necessary to mention them”^[3], in other words those that do not need to be defined. Many of these are listed authorities under section 19 of the Act 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.

“Core” public authorities, who carry out functions which are clearly of a public nature (such as social care, housing, health and education which are publicly funded), need to ensure any functions which are within the legislative competence of the Scottish Parliament are compatible with the UNCRC requirements as provided for in section 6(1). These are functions under common law and from legislation originating^[4] from the Scottish Parliament. 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.

In addition, it is important to note that section 6 applies to all “acts” of public authorities which means that it applies not only to specific functions of a public authority but to all acts of public authorities that are within the legislative competence of the Scottish Parliament. There is extensive jurisprudence on the meaning of “act” in the context of the HRA which clarifies that it should be given a “broad and purposive meaning”^[5]. Examples of “acts” which may be covered by section 6(1) include recommendations, a preliminary decision (e.g. proposals made by local authorities which are put before the Government for approval), final decisions, advice (including general advice) and reports.

Bodies that undertake functions of both a public and a private nature will only fall within the scope of the Act in relation to their functions which are of a public nature. Their functions which are of a private nature are excluded from the legal duties of the Act. “Hybrid” public authorities who carry out a mixture of public and private functions will need to assess when and how the duty applies to these areas. For the HRA, this has sometimes meant that the courts have had to determine on a case by case basis which bodies are considered “public authorities” for the purpose of this Act. It has been stated that “[t]here is no single test of universal application”^[6] and factors to be considered by the courts include “the extent to which in carrying out the relevant function the body is publicly funded, or is exercising statutory powers, or is taking the place of central government or local authorities, or is providing a public service”^[7]. However, it should be noted that section 6(7) of the Act states that “functions are not excluded from being functions of a public nature … solely because they are not publicly funded”. This makes it clear that the source of funding is not a determining factor in deciding whether a function is public or private in nature. Nevertheless, it is likely that case law will play an important role in clarifying whether functions and acts are within or outwith the scope of the Act in relation to hybrid bodies and the private, voluntary and independent (PVI) sector.

The section 6 duty will not apply to bodies that do not have any functions of a public nature or where the nature of the acts are wholly private. This recognises that the obligations under the UNCRC (as with other human rights frameworks) are placed on the State. The Act states under section 6(8) that:

“In relation to a particular act, a person is not a public authority by virtue only of subsection (5)(a)(iii) if the nature of the act is private.”

Therefore, if the nature of an act is purely private, the duty to act compatibly with the UNCRC requirements does not apply. The Act does contain some subsections (i.e. section 6 (6 and 7)), that make it clear that the nature of the function performed rather than the characteristics of the body performing it are to be the primary consideration^[8].

Application to Private, Voluntary and Independent Sector

Expanding upon the above, the Act also specifies (in section 6 (6)) that functions carried out under contract or any other arrangement^[9] with a public authority are included in the definition of “functions of a public nature”:

“For the purposes of subsection (5)(a)(iii), “functions of a public nature” includes, in particular, functions carried out under a contract or other arrangement with a public authority”.

It will ultimately be for the court to determine whether or not a function is ‘public’. However, the section above makes clear that where a person or body is undertaking a function pursuant to a contract or other arrangement with a public authority, that person or body is required to act compatibly with the UNCRC requirements. Thus, a person or body under a contract or other arrangement with a public authority is classified as a ‘public authority’ for the purposes of the definition at section 6(6) and must comply with the section 6(1) duty. The duty applies to the specific function under consideration and not to the person or body as a whole.

However, it should be pointed out that when core public authorities contract out service delivery to private persons or bodies, public authorities do not escape liability if the functions are incompatible with the UNCRC requirements. Public authorities are not exempt from their duty not to act incompatibly with the UNCRC requirements by virtue of ‘contracting-out’. Both the privately contracted person or body and the public authorities have to comply with the section 6(1) duty in respect of that function, and entering into a contract or arrangement does not shift the burden from one party to the other.

This is true also where services are commissioned by a party or consortium of public authorities. However, only those parties who hold the original obligation to deliver the service of a public function would retain the duty under section 6 - it would not be conferred to other parties in the joint commission. While not mandatory, public authorities may wish to include a clause in their contracts or other arrangements (such as grants) that specifies that the contractor must, in the performance of the contract, act in accordance with relevant UNCRC requirements.

Questions for working with PVI organisations

It is important to note that each case must be considered on its own merits. The recommendation is to seek legal advice, if in doubt. When making an assessment of whether acts or functions carried out by individuals and/or organisations within the private, voluntary or independent sector have to be compatible with the UNCRC requirements in line with section 6 of the Act, the following questions can assist in the analysis:

• Is there an arrangement between a known or recognised public authority (e.g. core or hybrid) and the private person or organisation?
• Does the arrangement involve a function that delivers a public service?
• Is the service being delivered under contract or any other arrangement, one which the public authority would also have a legal responsibility or duty to deliver?

If the answer to any of these questions is ‘yes’, then it may be likely that the individual or organisation must comply with the duty under section 6 of the Act. As stated above, the recommendation is to seek legal advice, if in doubt.

4.4 Explanation of the duties on public authorities in Part 2, section 6

Nothing in this Part prevents a public authority from acting compatibly in any situation where they are carrying out functions in relation to children. As the UK has ratified the UNCRC, compliance is in any event expected under international law obligations, unless the legislation prevents a public authority from acting compatibly.

A children’s human rights approach will support organisations to improve service delivery for children and young people; the Scottish Government published non statutory guidance on taking a children’s human rights approach on 8 January 2024.

Section 6 places a duty on public authorities not to act incompatibly with the UNCRC requirements in schedule 1 of the Act. This includes failures to act, that would result in an incompatibility with the UNCRC requirements. The UNCRC requirements are explained in section 3.3 of this guidance.

This means action could be taken by a court against a public authority in respect of a breach of their duties if they act incompatibly when the duty applies.

The circumstances in which a public authority can be found to have acted unlawfully on this basis are where an action or failure to act is incompatible with the UNCRC requirements.

This duty applies when public authorities are carrying out ‘relevant functions’ which are defined in the Act as:

(2) In subsection (1), a “relevant function” means a function that—

a. it is within the legislative competence of the Scottish Parliament to confer on the authority, and

b. is conferred by—

(i) an Act of the Scottish Parliament,

(ii) a Scottish statutory instrument originally made wholly under a relevant enabling power,

(iii) a provision in a Scottish statutory instrument originally made partly under a relevant enabling power, provided that the provision itself was either—

(A) originally made under the relevant enabling power, or

(B) inserted into the instrument by an Act of the Scottish Parliament or subordinate legislation made under a relevant enabling power, or

(iv) a rule of law not created by an enactment

Legislative Competence- 2(a)

To be within the competence of the Scottish Parliament a function must not relate to reserved matters. The UNCRC requirements in schedule 1 to the Act, as detailed at section 1.3 of this guidance, are of assistance here. The articles or aspects of the articles of UNCRC which are reserved are not included in the UNCRC requirements. The legal duty therefore does not apply to any reserved functions, but public authorities can still choose to act compatibly unless the source of the reserved function prevents them from doing so.

Common law functions- 2(iv)

The “rule of law” refers to what is known as “common law”. Common law refers to case law developed over time by decisions made by the courts – this can also be referred to as judicial precedent, or case law. Courts can interpret legislation and set out findings which explain how public authorities must comply with their statutory duties. An example of this is how the courts have interpreted the duty not to act incompatibly with the ECHR, as set out in the Human Rights Act. Individual public authorities should seek their own legal advice in relation to how case law may impact upon how they should carry out their functions. When a public authority is carrying out functions derived from common law powers, they will always be required to not act incompatibly with UNCRC requirements.

Legislation- 2(b)

The word “legislation” means the same as the word “enactment”. The types of legislation to which the duty applies are specified as functions^[10] enacted by the Scottish Parliament, or enacted by virtue of the Scottish Parliament delegating its power to make legislation to Scottish Ministers. This means that the duty will apply to stand alone provisions in Acts of the Scottish Parliament (ASPs), or subordinate legislation which are made using powers from an ASP.

Legislation may amend other pieces of legislation; when it does, text inserted into one enactment by another enactment is generally considered to form part of the enactment into which it is inserted, rather than being considered to be part of the enactment which inserted the text. The definition of the compatibility duty proceeds on this basis, and means that the duty does not apply to text inserted by ASPs (or subordinate legislation made under powers in ASPs) into other enactments (such as UK Acts or subordinate legislation made under powers in a UK Act).

To help determine whether the duty applies, a public authority would need to identify whether the statutory function in question was enacted by the Scottish Parliament or the UK Parliament.

UK Act amendments to ASPs

As a result of this approach to statutory interpretation, amendments to ASPs by UK legislation are covered by the duty. However, to avoid affecting the UK Parliament’s ability to make law for Scotland, provision is made to remove such amendments from the scope of the section 6 duty, if the UK legislation which makes the amendment is worded in a way that the authority is required or entitled to act incompatibly.^[11]

Secondary legislation

Scottish Statutory Instruments (SSIs) made using powers solely from ASPs are also covered by the duty.

SSIs made partly under a power conferred by an Act of the Scottish Parliament and partly under a power conferred by an Act of UK Parliament are within the scope of the Act. However, only functions conferred by provisions which were enacted solely by virtue of the power conferred by the Act of the Scottish Parliament, plus provisions inserted directly into the instrument by an Act of the Scottish Parliament, are subject to the duty.

In summary, this means that:

• functions conferred by Acts of UK Parliament,
• statutory instruments made solely under powers conferred by Acts of Parliament, and
• provisions of Scottish statutory instruments made under a power conferred by an Act of Parliament are not subject to the duty.

As functions in reserved areas are already excluded, the definition of “relevant function” in relation to Scottish Statutory Instruments mainly serves, in practice, to exclude devolved functions created by or under the authority of the UK Parliament.

Summary of coverage in legislation

In summary, the duty will apply to devolved functions created by legislation of the Scottish Parliament and does not extend to devolved functions created by legislation of the UK Parliament. There is however no barrier to a public authority choosing to act compatibly under all or any of their devolved functions, unless the legislation itself makes it unlawful to do so.

Acting compatibly under section 6

To meet the section 6 duty means not to act incompatibly with the UNCRC requirements. Annexes A and B provide assistance in how to approach this.