UNCRC Embedding in Public Services Guidance Sub-group minutes: May 2022

Attendees and apologies

In attendance:

• Carola Eyber (chair), Scottish Government – CE
• Nicola Hughes, Scottish Government – NH
• Lesleyann Russel, Scottish Government – LR
• Susan Revie, Scottish Government – SR
• Eilidh Walker (minutes), Scottish Government – EW
• Darren Little, Dumfries and Galloway Council – DL
• Debby Wason, Public Health Scotland – DW
• Dragan Nastic, Unicef – DN
• Poppy Prior, Scottish Government – PP
• Rebecca Spillane, Improvement Service – RS
• Rebekah Cameron-Berry, COSLA – RCB
• Sarah Rodger, SOLAR – SR
• Tamar Jamieson, Police Scotland – TJ

Apologies:

• Julie Williams, CCPS

Items and actions

Welcome and apologies

CE welcomed attendees and noted apologies. Lesleyann Russell was welcomed as the Scottish Government lead on guidance for reporting duties under Part 3 of the Bill.

Review of minutes and action points

Members were content with the minutes from the previous meeting of 19 April 2022 and agreed no further changes were needed.

Action points from last meeting:

• EW confirmed the group page is now live and minutes from previous meetings and the group’s Terms of Reference have been included
• we are continuing to explore compatibility options and are intending to update the group as to these preferred options at the next meeting on 14 June 2022

Action: CE to update group of preferred compatibility options at meeting on 14 June 2022.

Update on remedial work on Bill

NH confirmed there has been no significant update on remedial work on the Bill since the last meeting of 19 April 2022.

Update from Improvement Service and others on Local Authorities (LAs) perspectives on the guidance

Rebecca Spillane, Improvement Service, updated the group on preliminary findings from conversations with LAs around their perspectives on guidance.

Feedback was collated under 5 headings: general comments on future guidance; clarity on key terminology; dealing with complaints; coordinating across other legislation and Children’s Rights and Wellbeing Impact Assessment.

General comments on future guidance:

LAs requested that guidance should be easy to read, digest and act upon. LAs would like guidance to be a routine reference point to help ensure they are doing the correct things to progress children’s rights and be compliant. LAs also suggested that guidance should support staff to be confident in their approach to children’s rights and also provide examples of what a human rights approach looks like when done well.

SG comment: there is agreement that these criteria should be met through guidance. In addition, there will also be further options and opportunities available for providing this support, e.g. through the Skills and Knowledge framework.

Clarity on key terminology

Feedback suggested guidance should provide a clear definition or explanation of key terms to enable effective and consistent interpretation and application locally. Examples of these included definitions of ‘maximum resources available’ and progressive realisation amongst others. The guidance should also help LAs to understand what is meant by ‘a right is not being upheld’ e.g. what constitutes this and how would one determine this

SG comment: The guidance will provide a tool that public authorities may use as part of their efforts to assess which rights are relevant to the functions of a public nature they deliver, and make an assessment on whether any of those rights are at risk of not being fulfilled. Guidance as a mechanism will not be sufficient for pubic authorities to determine whether or not they are compliant with the UNCRC requirements as per the Bill, separate legal advice is encouraged.

Dealing with complaints

Some LAs felt that clarity and consistency about how to deal with challenges on the basis of children’s rights should be included to ensure a consistency of approach across Scotland and to ensure the process is rights based in itself. Some LAs would like clarity around the extent of their responsibility as a duty bearer, especially in regard to issues around procurement and systemic issues, such as gender-based violence. There was also a desire to take a partnership approach to implementation, such as via community planning, but there were concerns around how this cut-across with accountability for particular duties.

SG comment: We are supporting the Scottish Public Service Ombudsman (SPSO), who have a statutory function in relation to complaints handling for most public bodies, to develop and implement child-friendly complaints approaches across public services in Scotland. This will include providing guidance, support and training to public bodies in developing and delivering child friendly complaints processes, as well as providing support for children and young people and their families, and others who support them.

Read across to other legislation

Questions were raised around how LAs read the Bill alongside other legislation, with the example of how they discharge their duties in other areas where the legislative landscape is already complex. LAs suggested clarity should be provided around the difference between the duties LAs have under the Children and Young People (Scotland) Act 2014. Specific areas for consideration included: community planning; procurement and procured services; aged based services and GDPR.

SG comment: SG acknowledges that the legislative landscape is developing and appreciate the complexity this brings. The UNCRC will strengthen the current duties public authorities already discharge in relation to respecting, protecting and fulfilling the rights of children. Part 2 and 3 statutory guidance will aim to address this request from local authorities.

Children’s Rights and Wellbeing Impact Assessments (CRWIA)

LAs queried whether CRWIAs can be integrated into other assessments like, for example, Equality Impact Assessments, Fairer Scotland Duty and Island Impact Assessments or if they need to be done as stand-alone assessments.

SG comment: only Scottish Ministers will have a duty to prepare and publish a CRWIA, in certain circumstances, under the UNCRC Bill. There is no obligation or duty on Public Authorities to do so, but SG do promote and encourage the use of CRWIA and have published revised guidance and templates for any public body who wishes to do so. Work to improve training available on the CRWIA process and to develop an impact evaluation process for the CRWIA also continues. SG can provide support to public authorities who wish to prepare a CRWIA.

Public Authorities are welcome to adapt the SG CRWIA guidance and templates to meet their specific needs, including merging it with other impact assessments. We are aware of a number of public bodies who have done so already.

General discussion:

• a clarification of the range of LAs who were included in these conversations RS noted that a range of Local Authorities and positions were consulted including Directors of Education, Directors of Children and Families services but that education and children and families services tend to be the largest area of contributors
• whilst duties within the Bill apply to public authorities at an individual level, we recognise and encourage collaboration and working together to further realise the rights of children  
• DW suggested the group look at the strand in the Theory of Change (ToC) around remedy and complaints

Action: RS to continue conversations with LAs as work towards implementation / readiness for commencement continues, and will provide an update to the Embedding Reference and guidance sub-group as relevant.

Rebekah Cameron-Berry, COSLA, will update the group with regards to COSLA’s findings at the next meeting on 14 June 2022.

Action: RCB to present findings from conversations with Local Authorities around their perspectives on guidance at the next meeting on 14 June 2022.

Proposed content of statutory guidance for Part 2 and 3 of the Bill

Overview of what the Bill says about Guidance:

CE provided an overview of the specifications of guidance for Part 2 and 3 as set out within the Bill.

CE noted that the topics listed under Children’s Rights Scheme are highly relevant and that most would be included in the statutory guidance for Part 2 and 3. CE emphasised that other options for providing support to duty-bearers are also available beyond the issuing of Part 2 and 3 statutory-guidance, and include non-statutory guidance, a Skills and Knowledge Framework, the Improvement Service’s Knowledge Hub and revisions of issued guidance.

Update on priority topics to be considered for inclusion:

SG are currently looking at the range of topics which could be included in Part 2 guidance, which would assist in responding to the requests from public authorities, and in meeting the specifications as set out in the Bill. Following feedback from a range of stakeholders suggested priority topics for inclusion in guidance include:

• framework for review of compatibility
• definition of key terms (e.g. public authority, public function)
• clarity around reserved and devolved functions
• clarification around conceptual aspect (e.g. progressive realisation)
• sources of interpretation and additional support
• links with other policies and practices e.g. GIRFEC
• supporting the participation of children and young people in decisions which affect them
• organisational awareness raising
• effective access to justice including child friendly complaints handling procedures (to be developed by SPSO)

List of other topics to be kept under consideration for inclusion:

• stakeholders have expressed an appetite to see Part 2 guidance include the following topics. We will keep these under review and will determine how best to share or promote existing guidance on these topics in due course
• Child Rights and Wellbeing Impact Assessments (CRWIA)
• consideration of the rights of children in relation to the budget making process

General discussion from the group around topics for inclusion included:

• interest around inclusive communication and participation being separate sections – you can’t have good participation without inclusive communication so interested in what the outcome of this would be
• is there a working group leading on child friendly budgeting as this section was described as being “in process”?

NH noted that SG does not consider inclusive communication and participation to be separate aspects and confirmed that inclusivity is a central aspect of ensuring full participation of CYP. However, there will also be other places where inclusive communication can be covered more fully. NH noted the group may find the Scottish Government’s guidance on participation of children and young people a useful resource.

RS noted that the Knowledge Hub, hosted by the Improvement Service, can host resources that can support aspects of this work. For example, the section on child friendly communications.

NH noted Aidan Flegg will be returning in June on a 3 month contract with SG to look at child friendly budgeting. SG are looking into a presentation on this at a future meeting of the Embedding in Public Services Group.

CE noted that SG does have the mandate to update guidance in the future and that this is not static. However, SG are conscious to include priority topics in the first instance with the ability to revise these at a later date.

CE noted that topics for inclusion within Part 3 guidance will be discussed at the next meeting on 14 June 2022. The team are giving consideration to what transitionary arrangements between the Children and Young People (Scotland) Act 2014 and the UNCRC Bill may be required, as we are conscious many public authorities will be preparing their 2023 report now. We will discuss any options with stakeholders as necessary and will update the Embedding Reference Group, and this group, if relevant to guidance.  

AOB

Further comments from the group included:

• a call for more details of the work being undertaken by SPSO around child friendly complaints. Some LAs are already in the process of looking into this work but don’t want to duplicate – should this work be parked?
• could we show links between the guidance and the Skills and Knowledge Framework
• links between the ToC and Guidance should be explored. For example, remedy and redress – whatever the SPSO produce could reference the ToC, to aid in collective communications

NH noted that SG are in conversation with SPSO about presenting their work around a child friendly complaint system at a future meeting of the Embedding in Public Services Group.

NH reminded the group that any guidance produced will be subject to statutory consultation.

CE encouraged the group to contact Luiza Leite or herself around topics for the agenda of the next meeting on 14 June 2022.

Action: members to contact Carola Eyber or Luiza Leite with suggestions for agenda items for the next meeting on 14 June 2022.