UNCRC: Embedding Children’s Rights in Public Services Guidance Sub-Group minutes – July 2023

Attendees and apologies

• Lyndsey Saki (Chair), Scottish Government (LS)
• Luiza Leite (Minutes), Scottish Government  (LL)
• Gita Sharkey, Scottish Government (GS)
• Anna Munro, Scottish Government (AM) 
• Vicky Wan, Children’s Parliament (VW)
• John McDiarmid, Police Scotland (JM) 
• Sarah Rodger, SOLAR (SR)
• Felicia Szloboda, Improvement Service (FS)
• Rebekah Cameron-Berry, COSLA  (RCB)
• Darren Little, Dumfries and Galloway Council (DL)
• Juliet Harris, Together Scotland (JH)

Apologies:

• Grant Trainer, Police Scotland  
• Jane Donaldson, Police Scotland 
• Julie Williams, CCPS 
• Dragan Nastic, UNICEF 
• Rebecca Spillane, Improvement Service 

Items and actions

1.    Welcome, apologies and introductions of first-time attendees

LS welcomed members and noted any apologies received.

2.    Review of minutes and action points

There was one action from the previous meeting of 9 May which is now complete:

• LS to review guidance sections based on feedback 

Members approved the minutes from the meeting held in May and these will be published on the group page shortly. 

3.    Update on Remedial Work on Bill 

LS shared the following update with members:

On Tuesday 27 June 2023, the Cabinet Secretary for Social Justice provided an update to Parliament about progress with the UNCRC (Incorporation) (Scotland) Bill, to explain the reason for the delay in bringing the Bill back to Parliament, and to share how we propose to amend the Bill and the rationale behind that and to confirm next steps to begin the parliamentary process for reconsideration.
 
As the First Minister set out in his recently published policy prospectus, Scottish Ministers remain absolutely committed to Scotland being the first UK nation to incorporate the UNCRC into domestic law, ensuring we are a country that respects, protects and fulfils children’s rights.
 
To reduce the risk of another referral to the Supreme Court on a revised Bill, engagement has taken place with lawyers in the Office of the Advocate General on how we propose to amend the four sections of the Bill that were judged to be outwith legislative competence. Much of the focus of this engagement has been on how the duty to act compatibly with the UNCRC can apply when a public authority is acting under powers conferred by UK Acts in devolved areas.
 
We knew that the Supreme Court judgment meant we could not require public authorities to act compatibly when delivering duties under powers in a UK Act in a devolved area and the Act requires them to act incompatibly. However, what we were seeking to achieve was for the compatibility duty to apply when a public authority was delivering duties under a UK Act in a devolved area and the Act either required them to act compatibly with the UNCRC or gave them some discretion to act compatibly.
 
In drafting amendments to the compatibility duty, we have tried to balance three important considerations: protecting children’s rights to the maximum effective extent possible; minimising the risk of another Supreme Court referral; and making the law as accessible as possible for users. Our assessment is that the most effective coverage for the compatibility duty is for it to apply only when public authorities are delivering duties under powers in an Act of the Scottish Parliament. Further explanation of why we have reached that decision is provided in the Cabinet Secretary’s statement which can be found here. 
 
Although this will entail a loss of coverage for existing Acts of the UK Parliament in devolved areas, it will still provide valuable protections for children rights and do so in a way that is legally sound, clear for users and gives us a solid basis from which to begin our journey to legislate for children's rights and wider human rights. 
 
Next steps:

To move forward, we need to complete essential checks with Parliamentary Clerks on admissibility. Thereafter our aim is for the initial motion to Parliament to be scheduled as early as possible after the parliamentary recess to allow the reconsideration process to commence. While we are unable to confirm exact timings, we would expect the reconsideration process to be relatively short, although that will depend on the extent to which the lead committee (the Equalities, Human Rights and Civil Justice Committee) wish to scrutinise the amendments. 
 
Section 6 of the Bill, which places a duty on public authorities not to act incompatibly with the ‘UNCRC requirements’ as defined by the Bill, would commence no later than 6 months from Royal Assent, which we estimate could be mid-2024. 
 
The UK Government is already a signatory to the UNCRC, albeit it has not incorporated it into domestic law. Regardless of the scope of the legal duties in the Bill, the UNCRC is at the heart of the Scottish Government's commitment to ensuring that all children and young people have the best possible start in life, regardless of their circumstances. As such, public authorities are encouraged to do all they can to implement the Convention and uphold children’s rights. 

Feedback from members:

From a local authority (LA) legal perspective there are concerns on how this applies in practice. SR noted that the Society of Local Authority Lawyers & Administrators in Scotland (SOLAR) is exploring what this means in terms of LA functions, however the guidance should provide some clarity for duty bearers for what this means in practice. SR noted that sector specific guidance should be revisited given the changes and complexities. LS agreed that this is complex, however, the other options for amendments had even greater complexity. LS noted that sector specific guidance would need to be produced by experts from the sector. We can consider support to sectors on this, however, Scottish Government will not be able to provide sector specific guidance. 

Members noted that public authorities will require clarity on what is in scope following the revised UNCRC Bill. Currently it would be very time consuming to consider on a case by case basis. It would be useful if the statutory guidance could clarify this, e.g. include a list of Acts that fall within scope. LS noted the statutory guidance will define the duties but will not list the individual Acts in scope for the Bill. GS agreed this would not fit within the statutory guidance and public authorities will need to seek their own legal advice. 

JH highlighted that Together members are calling for a legislative audit and suggested this would help address some of these complexities. JH noted it will also be complex for children and young people to know if/when they are able to secure remedy and redress if they think their rights have been breached. Another ask from Together members has been for SG to produce some case studies to show how children and their representatives can navigate this complexity in practice. JH acknowledges the guidance will need to be a working document as this area develops. 

VW noted the Skills & Knowledge Framework (S&KF) is due to finish in March 2024, and it is important to consider alignment between now and that end period. We need to ensure the S&KF aligns with the updated Bill and resources are fit for purpose. 

LS noted our intention to share a revised version of the statutory guidance with the group once it is ready. 

4.    Discussion on non-statutory guidance

LS shared with members that, as a result of a helpful discussion between SG, Together, and the Children’s Parliament, we are suggesting to update the non-statutory guidance to use the Welsh child rights approach instead of the UNICEF child rights based approach. This will ensure that the non-statutory guidance aligns with the Skills & Knowledge Framework. It was highlighted that reference to 2 sets of different approaches and principles may cause confusion to readers. 

These principles of a Child Rights Approach in Wales were developed in a context where there is legal accountability for upholding children’s UNCRC rights with very specific emphasis on ‘empowering children’ and ‘authorities being accountable to children’. The guidance could be updated quite easily to align with these 5 principles: Equality, Accountability, Empowering, Participation and Embedding.

Members agreed to this proposed change. LS noted she will get in touch with Dragan for his views.

Action: LS to contact Dragan on the proposed change to non-statutory guidance.

Further comments on the non-statutory guidance were captured below: 

Progressive realisation / maximum available resources: currently makes reference to State Parties, it would be helpful to include a definition to make it more accessible. LS noted this is included in the statutory guidance and will be added in. 
Plans for updating non-statutory guidance: Under 3.4 for example – if the non-statutory guidance is published before the Bill, this will need updated. LS agreed we can review this for clarity.
Definition of duty bearers: Under 4.2 – this will need to be clarified in light of the amendments, as the definition of duty bearer will depend where the function comes from and there is risk of confusion. LS agreed to take this away and give further consideration to the definition of duty bearers.. Members agreed there needs to be clarity on a duty bearer under the UNCRC  and under the UNCRC Bill.
Complexities raised around child rights budgeting, as local authority budgeting comes from a UK Act. 

LS thanked members for comments which we will consider. 

Conceptual aspects of the UNCRC:

JH agreed that is not possible to pre-empt how the Scottish courts will define minimum core. However, JH noted that Scottish courts should draw from international recognised treaties to assist with decision making and asked for this to be clarified in the text. LS agreed that text from the Bill on the sources Scottish courts may use to support interpretation can be included.

5.    Any other business & date of next meeting 

It was agreed that the meeting scheduled for Tuesday 8 August 2023 will be cancelled. 
The next content shared will be subject to amendments on the Bill and, therefore, we are not yet able to give a timescale for when we can provide next drafts. We will give members 2 weeks’ notice before setting up a new meeting date. LS asked that members continue to submit comments and feedback in the meantime.