UNCRC (Incorporation) (Scotland) Act 2024 - part 2: statutory guidance
Draft guidance providing accessible information which supports public authorities to understand and fulfil their duties under section 6 of the United Nations Convention on the Rights of the Child (UNCRC) Act, and to secure better or further effect of children’s rights.
Annex C. Framework for reviewing compatibility with UNCRC requirements (section 6 duty)
Introduction
This document[42] presents a framework that public authorities may choose to use to review compatibility with the ‘UNCRC requirements’ as defined by the UNCRC Act. It outlines a three-step process which involves a preparation phase, followed by the actual review and concludes with considerations of actions that may result from the review. A checklist which lists key questions for public authorities to consider is provided at the end of the document together with a list of resources.
The UK, as a State Party, has ratified the UNCRC and the First and Second Optional Protocols. They are therefore binding on the UK as a matter of international law. Article 4 of the UNCRC requires States Parties to “undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognised in the present Convention”. In line with the Scottish Ministerial Code and as a responsible government, Scottish Ministers are already committed to the principles of the UNCRC and to complying with the UNCRC in devolved areas. As such, all legislation in devolved areas should already be compliant with the UNCRC and it is the responsibility of the Scottish Government to ensure that legislation in devolved areas is compliant with the UNCRC requirements.
This framework is intended to assist public authorities to review their own functions in accordance with the UNCRC requirements.
The rest of this introduction will now explain what is meant by “acting compatibly with the UNCRC requirements” by unpacking and clarifying each of these components. It explains who would need to comply with the Act as well as how the framework can be used. The introduction concludes with a synopsis of the review process.
What does “compatibility with the UNCRC requirements” mean?
The UNCRC requirements are explained at section 3.3 of this guidance. In legal terms, ‘acting compatibly’ refers specifically to the legal requirement to act in a manner that is consistent with something else, in this instance to act in a way which is consistent with the rights as outlined in the UNCRC requirements.
In relation to the application of law, compatibility means interpreting and giving effect to the law in a way which is as close to the UNCRC requirements in the Act as possible. In the context of human rights conventions and treaties, a general rule is that articles of a convention should be interpreted honestly (in good faith) in line with the “common sense meaning” of the terms of the Convention within their context and in light of the purpose of the convention[43]. A “common sense meaning” of a term can refer to the conventional understanding based on the original language used in the text, but can also be adapted and interpreted by the courts to include current meanings that fulfil the intention of the Convention[44]. The context refers to the entire text of the Convention, including its preamble and annexes. The purpose of the Convention needs to be derived from its overall intention as exemplified in its entire text, but referred to specifically in the four articles known as the ‘general principles’ (see section A.1 of this guidance).
When seeking to establish if actions or functions are compatible with a legal requirement, it is necessary to understand what the legal requirement is and the next few sections will aim to explain this in more detail.
Who is this Framework for: “functions of a public nature”
This framework can be used by all with a duty to comply with section 6 of the Act. The Act mandates public authorities, Scottish Ministers, courts and tribunals and “any person certain of whose functions are functions of a public nature” to act compatibly. The meaning of the term ‘public authority’ has been drawn intentionally wide in the Act so as to include not only those public authorities which routinely provide public services, but also other bodies when they exercise functions of a public nature.
Please refer to section 4.3 of this guidance for definitions of key terms in the UNCRC Act, including, ‘functions of a public nature’ and ‘public authority’.
Who should undertake the compatibility review process?
Once an organisation considers itself, by virtue of the functions it delivers, to be a public authority for the purposes of the Act, they may wish to consider when and how to undertake a review of compatibility, and whom to involve.
Whilst public authorities will be accustomed to the legislation in their statutory context, and will have pre-existing processes in place to ensure this, for the purposes of undertaking a review of compatibility against the UNCRC requirements, the following is recommended:
1. Those undertaking the review have an understanding of child rights and the UNCRC requirements (see sections 3.1 and 3.3 of this guidance)
2. Ensuring, in the process of awarding the contract or other arrangement, that both bodies collaborate to undertake the compatibility review, i.e. those who hold the original obligation to deliver the service of a public function and those delivering the service
3. Those undertaking the review have considerable insight into the specific measure, service or policy area under consideration
4. Working in partnership with other public authorities who deliver the same or similar functions, to support the sharing of learning and to reduce duplication of effort, where possible
5. Where different groups/ individuals within the public authority are undertaking reviews on separate acts, they communicate frequently to ensure consistency of application and understanding
6. Upon completion of the review, agreeing how the public authority and provider will keep this under review once operational delivery of the service begins.
These processes are likely to ensure that the review is carried out as thoroughly as possible. It is also understood that the skills of conducting the review will be developed within and across organisations as this process becomes more embedded. Whilst at the discretion of each public authority, some element of legal advice may be required before, during or after the process.
When and how to use this Framework
The framework can be used to review compatibility both for existing, ongoing functions, as well as for ones that are proposed or considered for future implementation, and to identify gaps in policy and practice where there is an absence of action being undertaken or considered for future implementation. The review framework is applicable to a number of different actions and functions considered to be within the realm of the work of public authorities:
- Policies: existing policies, any proposed changes to these or new policies and the absence of policies
- Services provided: current service provision, including the absence of such provision, as well as any proposed changes
- Strategic and operational decision-making, including public authority resourcing
The two purposes, i.e. the review of existing functions as well as the review of proposed functions, will now be discussed in turn.
The first purpose will allow users to review existing functions and measures which could include, for example, policies, services and provisions that are currently in place or absent. Public authorities may wish to undertake a review as an assessment of the current UNCRC compatibility of their relevant existing functions. The framework provides one optional process, you may also wish to consider the Getting Ready for UNCRC Framework.
The second purpose could facilitate a compatibility check of any proposed changes to be made in the future. This could include, for example, new policies, services and provisions to be developed or changes proposed to existing ones.
The proposed compatibility assessment bears some resemblance to the methodologies of other impact assessments currently undertaken by public authorities, such as the Equality Impact Assessment (EqIA), Children’s Rights and Wellbeing Impact Assessments (CRWIA), Fairer Scotland Duty Assessment, Islands Impact Assessment, Health Impact Assessment, and Human Rights Assessment amongst others. However, it should be seen as a separate assessment specifically focused on reviewing against the UNCRC requirements (see Step 2 below).
If conducting a compatibility review for proposed measures or functions, i.e. forward-looking as opposed to reviewing existing measures, the timing of when it is conducted is important. The review should be done as early as possible and not just as an add-on or afterthought after a policy has been developed already. If it is not conducted early on, the findings of the review may delay the policy process by identifying problems that need to be fixed before it can be implemented. Efficient – i.e. very early - use of the compatibility review thus means that modifications or changes to the policy under development and the strategy for engaging stakeholders can be made early on in the process.
The process outlined below will help signpost you to relevant issues when assessing whether your measures or functions are compatible with the UNCRC Act.
The checklist at the end of section 4 sets out the key questions to ask yourself at each step of the review process. The checklist does not represent a linear process. The review may be more circular than the checklist suggests in that steps may be revisited if issues are identified and modifications need to be made. Regardless of how circular the process is, however, do bear in mind that all questions may have to be considered.
The review framework and checklist are designed to apply across a range of public authorities, and across any number of functions. Public authorities may wish to consider local adaptation of the framework to enable a more nuanced assessment of their compatibility.
C.1 Step 1: Preparation: getting ready for compatibility review
When considering whether to undertake a compatibility review for a measure or function, there are several aspects to consider in preparation for the process. These include but are not limited to the following questions:
1. Is the function reserved?
2. Is the function conferred by common law or by Scottish legislation?
3. When is the best time to conduct the review?
4. What information and evidence do you need to conduct the review thoroughly?
5. How will you specifically ensure the involvement of children and young people in the review, or - if this is not required/ possible - how will you access information about their views and opinions?
6. Taking account of the evolving capacities of children and young people, will you need to involve parents, carers and families to understand the impact on children’s rights?
7. Who else should be involved in conducting the review?
8. How will you secure specific expertise on policy-related issues, on facilitating child participation or in relation to legal matters in order to conduct the review?
Some of these questions will be discussed in more detail below.
C.1.1 Legislative competence of Scottish Parliament: devolved & reserved matters
The Act places a duty on public authorities not to act incompatibly with the UNCRC requirements only in relation to devolved matters which are within the scope of the Act. Please see the explanation of the duties on public authorities in Part 2, section 6 in section 4.4 of this guidance.
The duty on public authorities is to ensure that they comply with the compatibility duty under section 6 of the UNCRC Act in relation to relevant functions. The duty is not to review either Scottish or UK legislation for compatibility, as this is the responsibility of Scottish Ministers. Should public authorities become aware of issues of incompatibility in legislation, they should notify the Scottish Government by raising this with the Scottish Government policy team with whom they usually engage as well as alerting the Children’s Rights Unit by emailing UNCRCIncorporation@gov.scot.
Specifically, the Act ‘carves out’ certain articles that either fully or partially relate to reserved matters. These specific articles in the Convention and the first two protocols are listed in the table below.
| Article | Fully/Partially Reserved | Discussion |
|---|---|---|
| 2 | Partially relates to a reserved matter | Elements of Article 2 relate to the reserved matter of equal opportunities under section L2 of Part 2 of schedule 5 of the Scotland Act. |
| 7(1) and (2) | Partially relates to a reserved matter | Elements of both Article 7(1) and 7(2) relate to the reserved matter of immigration and nationality in section B6 of Part 2 of schedule 5 of the Scotland Act. |
| 8(1) | Partially relates to a reserved matter | Elements of Article 8(1) relate to the reserved matter of immigration and nationality in section B6 of Part 2 of schedule 5 of the Scotland Act. |
| 9(4) | Partially relates to a reserved matter | Elements of Article 9(4) relate to the reserved matter of immigration and nationality in section B6 of Part 2 of schedule 5 of the Scotland Act. |
| 10(1) | Fully relates to a reserved matter | Article 10(1) relates to the reserved matter of immigration and nationality in section B6 of Part 2 of schedule 5 of the Scotland Act. |
| 10(2) | Partially relates to a reserved matter | Elements of Article 10(2) relate to the reserved matter of immigration and nationality in section B6 of Part 2 of schedule 5 of the Scotland Act. |
| 11(2) | Fully relates to a reserved matter | Article 11(2) relates to the reserved matter of international relations in paragraph 7(1) of Part 1 of schedule 5 of the Scotland Act. |
| 21(e) | Partially relates to a reserved matter | Elements of Article 21(e) relate to the reserved matter of international relations in paragraph 7(1) of Part 1 of schedule 5 of the Scotland Act. |
| 26(1) | Partially relates to a reserved matter | Elements of Article 26(1) relate to the reserved matter of national insurance under section F1 of Part 2 of schedule 5 of the Scotland Act. |
| 27(4) | Partially relates to a reserved matter | Elements of Article 27(4) relate to the reserved matter of international relations in paragraph 7(1) of Part 1 of schedule 5 of the Scotland Act. |
| 34 | Partially relates to a reserved matter | Elements of Article 34 relate to the reserved matter of international relations in paragraph 7(1) of Part 1 of schedule 5 of the Scotland Act. |
| 35 | Partially relates to a reserved matter | Elements of Article 35 relate to the reserved matter of international relations in paragraph 7(1) of Part 1 of schedule 5 of the Scotland Act. |
| 38(3) | Fully relates to a reserved matter | Article 38(3) relates to the armed forces which is reserved under paragraph 9 of Part 1 of schedule 5 of the Scotland Act. |
The First Optional Protocol on the involvement of children in armed conflict
| Article | Fully/Partially Reserved | Discussion |
|---|---|---|
| 1 | Fully relates to a reserved matter | Article 1 relates to the armed forces, which is reserved under paragraph 9 of Part 1 of schedule 5 of the Scotland Act. |
| 2 | Fully relates to a reserved matter | Article 2 relates to the armed forces which is reserved under paragraph 9 of Part 1 of schedule 5 of the Scotland Act. |
| 3 | Fully relates to a reserved matter | Article 3 relates to the armed forces which is reserved under paragraph 9 of Part 1 of schedule 5 of the Scotland Act. |
The Second Optional Protocol on the sale of children, child prostitution and child pornography
| Article | Fully/Partially Reserved | Discussion |
|---|---|---|
| 5 | Fully relates to a reserved matter | Article 5 relates to the reserved matter of extradition under section B11 of Part 2 of schedule 5 of the Scotland Act. |
| 6(1) | Partially relates to a reserved matter | Elements of article 6(1) relate to the international relations and extradition reservations in, respectively, paragraph 7(1) of Part 1 and section B11 of Part 2 of schedule 5 of the Scotland Act. |
| 10(1), (2) and (3) | Fully relates to a reserved matter | Article 10(1)-(3) relate to the international relations reservation under paragraph 7(1) of schedule 5 of the Scotland Act. |
C.1.2 Gathering evidence & data that supports your review
This section covers two steps to support public authorities to gather evidence which will inform a compatibility review.
Step 1: Identifying what evidence is required and whether it is accessible
To conduct the review, it will be necessary to identify what evidence is required to assess how the measure or function potentially relates to child rights and/or affects children either directly or indirectly, and whether or not that evidence is accessible. Relevant information can exist in the form of annual or other reports produced by your organisation such as Children’s Services Planning Reports, routine monitoring and evaluation data collected, research that has been published on a specific issue or child right, and civil society reports, amongst others. Questions that could guide this process are:
1. What information do we need to understand how the policy or measure relates to child rights?
2. What information do we need to know how children will be directly or indirectly affected by this measure or policy?
3. Where is the information held, and can we access it from them e.g. other public authorities, Scottish Government, NGOs or civil society groups, academic researchers, has the UN Committee on the Rights of the Child published reports about these issues on their websites or through other means?
4. Will groups of children be affected in different ways and do we need/ have data that tells us about the impact of this? Think about how protected characteristics (age, disability, gender reassignment, marriage or civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation) and other statuses may play a role. Think also about whether the policy or measure will impact differently on the rights of children from different socio-economic backgrounds and, in doing so, could contribute to a poverty-related outcome gap.
5. Will we need to know what parents, carers or families think about the measure or policy?
Step 2: What evidence already exists? Is it necessary to collect missing information?
In the interests of efficiency and to avoid duplication, the second step is to determine what evidence is already available. The following questions may help guide you in ensuring that you ‘cast your net widely’ to capture as much of the available data as possible:
1. Is there relevant qualitative and quantitative data available on the policy area and/or the specific child rights that are affected by the measure or policy?
2. Is there available information about different groups of children and how they have been affected?
3. What data is missing that may need to be collected to complete the review?
Once the data has been collected and analysed, it will be possible to advance the review as described in the steps below.
C.1.3 Views of children and their parents, carers and families on the measure or function
Consultation with the persons being, or likely to be affected by the measure or function is likely to form part of the review process. It can assist in making the process transparent and helps to ensure that the reviewers are in possession of all the relevant information and is in keeping with a children’s human rights approach. This is especially the case for ‘forward-looking’ compatibility reviews for proposed measures or policies. As the purpose of the process is to ensure compatibility with child rights, it makes sense to include children and young people in the group of stakeholders whose opinions you may wish to draw on. Consideration should also be given to involving parents, carers, families and/ or other representatives of children and young people, to ensure children’s views can be taken into account. This approach might be more appropriate in a number of scenarios, such as for infants, non-communicative children, or children who require such an approach in keeping with a trauma-informed way of working. However, public authorities should not simply defer to parents or other representatives when this is the easier approach, and instead recognise the many ways in which children, including young children and those with communication needs, can and do manage to have their views understood, when inclusive approaches are used (see section 4.3.1 on inclusive communication in non-statutory guidance on taking a children’s human rights approach).
There are two ways in which children can be involved in expressing their views on proposed measure or policies:
1. Indirectly through accessing existing evidence on children’s views through reports, survey data, research publications, civil society organisations who work with children on these issues, or through their parents, carers, families and those who represent them.
2. Direct participation through engagement with children and young people – this can be facilitated by the public authority themselves, or via an arrangement with a third party.
Please refer to section 4.5 on participation in non-statutory guidance on taking a children’s human rights approach for more advice, further resources and some case studies on how to undertake meaningful child participation in policy development.
C.2 Step 2: Undertaking the compatibility review
The review consists of two stages: an initial screening stage which will aid in determining whether the section 6 duty applies to the specific functions or acts under consideration and the full review component.
C.2.1 Initial screening stage
The purpose of the screening stage is to determine whether or not the section 6 compatibility requirement applies to specific functions or acts under consideration. The following flowchart assists in this decision-making by taking the user through a series of questions that need to be considered in relation to this issue. Specifically, the user will need to consider whether:
1. They are a designated listed authority as per the Act;
2. If this is not the case, are the functions or acts considered to be of a public nature as defined in the Act; and
3. If the answer to either of the above questions is ‘yes’, is the function or act under consideration a ‘relevant function’ within the scope of section 6 of the Act.
Each of these will questions will be explained in more detail below.
There are three possible final outcomes for this flowchart:
1. Yes, the section 6 duty applies and the function, service or act needs to be compatible with the UNCRC requirements.
2. No, the section 6 duty does not apply. However, as the UK government has committed itself to ensuring children’s rights are upheld through the ratification of the UNCRC in 1991, users may wish to adopt a children’s human rights approach in keeping with this.
3. It is unclear if the section 6 duty applies. In this case, it is recommended that legal advice be sought in order to achieve clarity.
Steps for the decision-making flowchart
Step 1: Are you a public authority under the Act?
In this step, users need to decide whether or not they are considered to be a public authority to whom the requirement to act compatibly applies as specified in the Act. All listed authorities under section 6 would fall under this category, as would “core” public authorities, as defined previously in the guidance.
If the user is a listed or core public authority, they can go straight to Step 3 (see below) and do not need to undertake Step 2. If the user is unsure or is not a listed or core public authority they need to go to Step 2 before they can move on to Step 3.
Step 2: Are your acts or functions of a public nature?
If the user is not a public authority or is unsure about this, they need to determine whether their functions and acts are of a public nature or not. The Act specifies that functions carried out “under a contract or other arrangement with a public authority” are considered to be of a public nature; as such, any such functions will result in a ‘Yes’ decision at this step. A further consideration is the source of funding: the Act makes it clear that functions are not excluded from being functions of a public nature purely because they are not publicly funded.
A ‘Yes’ decision will automatically lead to Step 3 of the flowchart. A ‘No’ decision, based for instance on the fact that the function or act is solely private, may imply that the section 6 compatibility duty does not apply. These users may decide to screen out but should note that a ‘no’ decision achieved via application of this Framework does not definitively mean your functions are not caught by the duty to act compatibly: legal advice on this should be sought if there is any uncertainty. For those who do screen out, they are nevertheless encouraged to consider applying a children’s human rights approach (CHRA) to their functions and actions. However, it should be noted that as there are a range of factors to be considered, it might sometimes be unclear as to whether functions or acts are of a public nature. Therefore, users who are unsure about this are advised to seek legal advice.
Step 3: Is it a relevant function ?
All users who have answered ‘Yes’ to either question 1 or 2, may decide to use the flowchart in Step 3 which asks them to consider whether their functions are relevant functions under section 6. If the answer is ‘Yes’, the section 6 duty applies. If the answer is ‘No’, the duty may not apply but users are encouraged to apply a CHRA to their functions. If users are unsure, they will need to analyse where they derive their powers from in relation to the function or act in order to determine whether the function or act is within legislative competence of the Scottish Parliament. They may wish to seek legal advice to determine this.
Flowchart to aid decision-making in relation to the Compatibility Duty
If the outcome of the flowchart indicates that the section 6 duty applies, users are encouraged to undertake the full review (see 2.3. below) of their function, policy or act against all articles of the UNCRC requirements as specified in the Act. This stage provides a table that users may find helpful when undertaking this review.
C.2.2 Reviewing against the UNCRC requirements
When a decision has been reached that a review against the UNCRC requirements needs to be undertaken, public authorities may find the following table useful. It sets out, in a hyperlinked list, all the articles and Optional Protocols that form part of the UNCRC requirements (Annex 1):
Articles of the UNCRC
First optional protocol on the involvement of children in armed conflict
| Compatible | Not compatible | Unsure | |
|---|---|---|---|
| Article 4 | |||
| Article 5 | |||
| Article 6 | |||
| Article 7 |
Second optional protocol on the sale of children, child prostitution and child pornography
| Compatible | Not compatible | Unsure | |
|---|---|---|---|
| Article 1 | |||
| Article 2 | |||
| Article 3 | |||
| Article 4 | |||
| Article 6 | |||
| Article 7 | |||
| Article 8 | |||
| Article 9 | |||
| Article 10 | |||
| Article 11 |
When reviewing against the articles and optional protocols, you will need to read the wording carefully to understand the obligations they impose on duty bearers in relation to child rights. Some of the provisions are clear, e.g., Article 7 which refers to every child’s right to have a birth certificate.[45] In other instances, you may need to consider the implications of the meaning or intention behind the wording (e.g. Articles 5 and 14 refer to the “evolving capacities of the child”). Section in Annex C of this guidance, ‘What does “compatibility with the UNCRC requirements” mean?’, Annex A on the conceptual aspects of the UNCRC and Annex B on sources to guide interpretation provide some explanations which may be helpful in this regard. You may also wish to seek independent legal advice.
C.2.3 Assessing impact on children and their rights
An important aspect of seeking to implement child rights to the fullest extent possible is a consideration of how the particular policy or measure impacts on children. For the purposes of the Framework, acts which are determined to have a positive or neutral impact may be at a lower risk of being incompatible. Those found to have a negative impact, i.e. which remove, restrict or reduce the rights experienced by children may be at greater risk of being incompatible. This is a simplistic way to consider impact on children and will be subjective depending on the specific matter being considered. In the interest of making Scotland the best place to grow up and providing children with what they need to “grow up loved, safe and respected so that they realise their full potential”, all public authorities will be keen to understand the impact their actions/ omissions may have on children’s rights, pursuant to improving their outcomes and wellbeing in general.
Impact on children can be understood to be negative, positive or neutral, direct or indirect, and as short, medium or long-term.
- A negative impact is described as one where the policy or measure regresses existing rights or brings about a detrimental effect to particular groups of children, in relation to the enjoyment of their rights. Whilst there are limited and exceptional reasons for when this may legally occur, it is possible such an impact would not comply with the UNCRC requirements, particularly if there are not convincing reasons and controls in place to return the fulfilment of rights back to their previous position.
- A positive impact is where the actions in question seek to further respect, protect and fulfil the rights of children, thus giving fuller and further effect to how those rights are enjoyed by children. It is likely that such acts would be considered as compatible with the UNCRC requirements.
- A neutral impact is described as one where children’s rights are neither regressed or reversed nor furthered in any way (UNICEF, 2021: 17).
In addition to a duty to not act incompatibly, section 6(2) of the Act makes clear that the duty on public authorities also extends to a failure to act. Therefore, public authorities should give consideration not only to their actions, but their inaction as well. Public authorities may find it useful to consider instances where no action was taken, when said action may have led to better and further effect to the rights of children and how that affects their compliance with the duty to not act incompatibly.
C.2.4 Assurance & accountability: reasonableness, proportionality, and seeking legal advice
If the above compatibility review has been completed and there are areas of uncertainty about whether an action/inaction is compatible with the UNCRC requirements, and therefore, the public authority is at risk of not being compliant with the section 6 duty, the public authority is strongly encouraged to seek legal advice, and where required, to effect plans to mitigate against the risk of non-compliance. Whilst this recommendation is in relation to any ticks in the columns ‘Incompatible’ and ‘Unsure’ in the above table, this would not provide certainty that anything assessed as ‘compatible’ is so. This framework facilitates a review of compatibility but cannot provide assurance that the outcome of an individual assessment is accurate.
There are two factors that you may wish to consider in deciding whether to proceed with the decision to implement a measure or function: the principle of reasonableness, and proportionality of impact.
The principle of reasonableness
The principle of reasonableness concerns the decision as well as the way in which it was reached. The courts have recognised that when two different reasonable persons have the same set of facts, they may arrive at different decisions – according to the Judge Over Your Shoulder (JOYS), “a range of lawful decisions may lie within the discretion of a decision maker.” When making a decision, it must not be so unreasonable that no reasonably acting person could have made it. This is known as the ‘Wednesbury’ principle after the well-known court case[46]. A decision could be deemed to be unreasonable if the decision-maker took account of irrelevant factors or relied on inaccurate information. This underscores the importance of having accurate information available which has been gathered through consultation with relevant stakeholders as well as through other means (see section 1.3. above). While a decision can be considered to be reasonable, a court may not necessarily reach the same decision. In all instances where such matters arise, it is advisable to seek legal advice.
Proportionality of impact
When analysing the potential negative impact that a policy or measure may have on children and their rights or specific groups of children, proportionality may be a relevant factor to consider. In human rights cases proportionality can mean considering:
- whether what you are trying to achieve is important enough to justify interfering with a Convention right;
- whether what you are deciding to do makes sense in relation to what you are trying to achieve;
- whether you could decide to do something else that would have interfered less with a Convention right, and still achieve what you are trying to do; and
- whether you are striking a fair balance between the effects of your decision on a Convention right and what you are trying to achieve[47].
The proportionality of a decision can be reviewed by courts if a decision is challenged. The courts can look at whether the decision to interfere with a right is justified and proportionate. The circumstances of the case will influence how different options or decisions will be weighed against one another in determining whether the most proportionate decision was taken.
We do not yet know how the courts will approach the issue of proportionality in relation to UNCRC rights as part of domestic law in Scotland. However, under the HRA, the concept of proportionality has been drawn from the European Court of Human Rights case law in relation to the ECHR rights, which has resulted in distinguishing between three different kinds of rights: absolute rights, limited rights and qualified rights[48]:
- Absolute rights: these rights can never be interfered with or limited in any way. Examples include rights such as not to be tortured or treated in an inhuman or degrading way and the right to hold religious beliefs .
• Limited rights: these rights can only be restricted in specific circumstances, for example, the right to personal freedom can be limited if someone is detained following a criminal conviction or under mental health legislation and the correct procedure was followed .
• Qualified rights: Some rights can be qualified if it is in the interest of the wider community or to protect other people’s rights. Examples of these rights are the right to privacy, freedom of expression and freedom of assembly, amongst others. The public authority must be able to show that it has a legitimate reason to do so, for example the protection of other people’s rights, national security interests, the prevention of crime or for public safety, amongst others.
In existing Human Rights law, a public authority can only interfere with a qualified right if it is allowed under the law, there is a legitimate reason to do so and the response is proportionate. ‘Proportionate’ refers to a fair and balanced response that is not greater than what is absolutely necessary to achieve the legitimate aim. The degree of weight or respect that should be given to an assessment of what is proportionate will depend upon the context as well as the information available. In relation to the Act, the courts will decide whether or not the rights contained within the Act are subject to this form of distinction, and if so, how those distinctions will be applied.
Proportionality may thus be relevant to the assessment of the UNCRC requirements under the Act but this will ultimately be determined through case law by the courts. For public authorities it will be important to keep records of decisions made as well as the grounds upon which they were made for such eventualities.
C.3 Step 3: Action to be taken & communication
The final step in the review process involves assessing if any action needs to be taken as a consequence of the review conducted under Step 2, as well as considering to whom you may wish to communicate the findings of your review.
C.3.1 Mitigation & action plans: what to do if review identifies concerns
If you have undertaken step 2 above and there are concerns about the compatibility of the measure with the UNCRC requirements, it is necessary to assess the nature of these concerns and to take appropriate action. Some examples of the types of concerns that may occur are listed below but this list is not exhaustive:
Lack of clarity: there may be instances where it is unclear if a proposed or existing action/inaction is compatible with the UNCRC requirements. This may be due to a lack of sufficient information or evidence and it may be necessary to seek this out to assess whether this assuages the concerns. If this does not clarify the issues deemed to be potentially incompatible with the Act, further legal advice may be required.
Choice of options: there may be situations where public authorities could discharge their duties to provide various services or functions in a number of ways. Whilst public authorities have discretion on which option to choose, it may be helpful to consider the available options with the outcome of the review in mind, as well as which options are likely to have a positive impact on children.
Some negative impact on children’s outcomes: there may be situations where an analysis of the impact on children reveals that some groups of children may be negatively impacted by the measure. You will need to consider whether compensatory measures are needed to mitigate any negative impacts of the proposal on children’s rights. The proposed measure or policy may need to be amended before it can go ahead and targeted mitigation measures and plans may need to be outlined.
Risk of incompatibility: if an action/inaction is found to be at risk of being incompatible with the UNCRC requirements, action must be taken to set in motion arrangements to comply with the Act.
Summary questions
Some summary questions are suggested that you may wish to consider:
- Is the policy or measure the best way of achieving your aims, considering children’s rights? If not, can the policy or measure be changed in ways that improve or give further effect to children’s rights?
- Has a child rights impact assessment been undertaken and raised concerns that children’s rights may be negatively affected for a particular group? (section 4.2.1 on decision making in non-statutory guidance on taking a children’s human rights approach provides information on child rights and wellbeing impact assessments)
- Are there conflicting rights that may need to be balanced with one another? If so, can decisions to limit or restrict a specific right be based on the principles of reasonableness and proportionality (see section C.2.4 above)?
- Are there any barriers to not acting incompatibly with the UNCRC requirements?
C.3.2 Keeping your measures under review: new case law & UNCRC Committee developments
Once they have reviewed existing functions and have taken steps in response to that review, public authorities may wish to keep their policies and measures under review to accommodate changes in legislation and emerging children’s rights issues. Specifically, they could review these in light of:
- New case law arising from legal proceedings brought under the UNCRC Act in Scotland.
- As appropriate, the sources of interpretation listed in section 4(2) of the Act, e.g. recommendations following Days of General Discussion, Concluding Observations and General Comments by the UNCRC Committee.
C.3.3 Communicating impact: giving better and further effect to child rights
Where the compatibility review has indicated positive impact on children’s rights, public authorities may wish to communicate this as evidence of their initiatives to give better and further effect to child rights. The reporting duty under Section 18 of the Act requires listed authorities to report on the actions taken and their plans for giving better and further effect to child rights, and positive results from the compatibility review can form part of this. However, public authorities may also wish to communicate neutral or negative outcomes for children’s rights to highlight particular issues within their report. Guidance on Part 3 provides suggested frameworks and considerations to assist listed authorities to prepare and publish their children’s rights report.
C.4 Summary of steps public authorities may wish to consider
Step 1
- Are required resources and planning in place for undertaking the review?
- Do you have sufficient data and relevant information available to complete the review?
- Do you know what the views of children and their parents, families and carers are on the functions or measures under review?
Step 2
- Have you reviewed against the UNCRC requirements when this is necessary?
- Have you considered the impact of your measure or function on children and young people?
Step 3 Action to be taken
Action resulting from your compatibility review:
- If the review has identified any potential problems or aspects where you are unsure about compatibility, what action needs to be taken to either clarify or mitigate these problems?
- What are the consequences of these actions or processes?
- Who needs to know the outcome of your compatibility review?
- If the decision is taken to communicate the outcome externally to your organisation, how best can this be communicated?
- If external communication is undertaken, how will children and young people and their carers be informed in an accessible and child friendly manner?
Keeping new child rights development under review:
- Has new case law in Scotland affected any of the services, measures or policies that you deliver?
- Has there been new information from the Committee on the Rights of the Child that relates to functions or measures you deliver, such as the Concluding Observations on State Reports, General Comments or Days of General Discussion?
- If the decision has been taken to adjust measures or functions, how is this being communicated to the people who need to know?
Giving better & further effect to child rights:
- For listed authorities in section 19 of the Act, if your review has demonstrated a positive impact on child rights through strengthening these, how can this be communicated or incorporated into your children’s right reports under Section 18?
- If your review has noted a neutral effect, can this be turned into a positive effect in future or through adjustments to the policy or measure?
Contact
Email: uncrcincorporation@gov.scot
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