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

Attendees and apologies

In attendance

• Carola Eyber (Chair), Scottish Government – CE
• Luiza Leite (Minutes), Scottish Government – LL
• Nicola Hughes, Scottish Government – NH
• Lesleyann Russell, Scottish Government – LR
• Susan Revie, Scottish Government – SR
• Poppy Prior, Scottish Government – PP
• Rachel Nicholson, Scottish Government – RN
• Dragan Nastic, Unicef – DN
• Juliet Harris, Together – JH
• Tamar Jamieson, Police Scotland – TJ
• Debby Wason, Public Health Scotland – DW
• Rebekah Cameron-Berry, COSLA – RCB
• Miriam McKenna (on behalf of Rebecca Spillane), Improvement Service – MM
• Vicky Wan, Children’s Parliament – VW

Apologies

• Lyndsey Saki, Scottish Government
• Darren Little, Dumfries and Galloway Council
• Rebecca Spillane, Improvement Service
• Sarah Rodger, SOLAR
• Nicola Hogg, SOLAR
• Julie Williams, CCPS
• Jane Donaldson, Police Scotland

Items and actions

Welcome, apologies and introductions of first time attendees

CE welcomed members and introduced first time attendees Vicky Wan, Capacity Building Manager for Children’s Parliament and Miriam McKenna from the Improvement Service (attending on behalf of Rebecca Spillane).

Review of minutes and action points

Members approved the minutes from the meeting held on 14 June, which will be made available on the group page. There were no outstanding action points

Update on remedial work on Bill

NH shared the following update:

• targeted stakeholder engagement on the proposed fixes to the Bill took place between the 25 May and 11 June 2022. The purpose of this engagement was to ensure that our key stakeholders understand our proposals for amending the Bill and to help us understand any concerns that need to be aired before or during Reconsideration Stage
• stakeholders indicated their support in principle to the proposals for amending the Bill. They recognise that the proposed amendments are necessary to address the Supreme Court judgment whilst minimising the impact on the original policy intention
• a summary of the response to this targeted stakeholder engagement was provided to the Equalities, Human Rights and Civil Justice Committee on 30 June
• we are currently drafting amendments to the Bill to resolve the legislative competence issue and engaging the parliamentary authorities about the timetable and process for Reconsideration Stage. Would ideally like to have the reconsidered Bill passed before the end of calendar year, but that will depend on whether the relevant Committees would like to schedule time to the scrutinise the amendments

DN asked for an update on what work was taking place to engage UK Government on the remedial work, specifically to prevent a further challenge. NH advised it was the intention of stated that this request for an update would be passed on to Shona Spence for consideration.

Action: NH to follow up with SS on engagement with UK Government on remedial work.

Update on targeted engagement on transitional reporting arrangements

LR led on this session and updated members that a consultation has gone out on the three options. All options include a provision to retain the duty under the 2014 act to complete the cycle by 2023. Feedback form the consultation indicated that option three is the least favourable, and there is a slight preference for option one (with some caveats). SG colleagues are currently working towards a deadline of September 2022 when the Coronavirus extension legislation expires

Option one contains the following provisions:

• reports due under the 2014 Act for the period 2017-2020 remain due and are to be submitted as soon as practicable
• reports due under the 2014 Act for the period 2020-23 would be due as soon as practicable after 31 March 2023
• first reports under the UNCRC Bill would be due as soon as practicable six months after commencement of the Bill (regardless of what date the Bill commences), which means the retrospective component of the first report would cover a six-month period
• reporting returns to the normal three-year cycle from 31 March 2026

Paper on making use of reports (Part 3 reporting duty)

LR laid out the three options set out in paper one:

Options for UNCRC Bill reporting and analysis

Collect and publish a compliance and light touch analysis of themes report of reports submitted within 12 months of date from which reports become due

• first reports under the UNCRC Bill would be due as soon as practicable after the 31 March 2023. Within 12 months of the date we would anticipate that a sufficient number of reports will have been submitted to compile information about actions taken to act compatibly with the UNCRC requirements and undertake a cohort analysis for learning purposes
• the same approach would apply for future reporting cycles i.e. 2026 and beyond
• concerns there could be a bias towards those who are organised or not encountering as many challenges?

Full cohort* analysis of content to understand overall progress

• this option is based on an analysis of reports from the full set of public authorities listed in Section 16 of the UNCRC Bill
• this approach would give a comprehensive picture of actions taken to act compatibly with the UNCRC and plans to progress children’s rights over the reporting period
• analysis of a full set of reports enables broader thematic analysis on actions taken to achieve compatibility with UNCRC requirements and further and better effect to children’s rights, and a greater understanding of the actions public bodies have taken and the impact of these actions. For example, approaches to raising awareness may vary across geographical areas or by different types of listed authority

Sample analysis 

• similar to option (b) above but rather than full cohort analysis only an agreed sample of reports are selected for review, for example 20-30%
• in addition, we have the option to take a random sample to explore progress across a range or bodies or more targeted sampling of different public authority types e.g. health, justice or local authority or on themes of implementation, such as participation, budgeting etc
• this approach could be more helpful in producing learning on areas of particular challenge and for capturing and sharing areas of notable good practice

The following points of discussion were captured:

• could we carry out a mix of all three options?
• sample analysis was the most favourable standalone option – good way to disseminate all learning in one place
• how can we ensure there is scrutiny?
• how can this be linked in with the new consortium of young people? Could those CYP help provide scrutiny of the reports?
• how does this link to the need to monitor child rights across Scotland in the wake of the Bill implementation?

These points will be taken into consideration in the development of the approach to making use of the submitted reports.

Summary of implications for guidance of targeted engagement with stakeholders on remedial fixes

CE noted that a number of suggestions about what should be included in guidance had been made in the submissions on the targeted consultation on proposed remedial fixes to the Bill in June. Members noted that public bodies are eager to understand the implications of the remedial fix for their duties in reserved and devolved areas, CE agreed that this is important and  that this depends on the exact wording of the proposed remedial fixes.

SG position on sector specific guidance hasn’t changed, this will need to be produced by the sectors themselves. The upcoming guidance will be generic in order to meet the needs of a broad range of public authorities and will therefore not provide sector-specific information.

Core elements of compatibility review framework

This paper was based on the document entitled Purpose and Scope of the Compatibility Review Framework which had been presented in the June meeting. CE requested that Paper two should not be shared beyond members of this group, and that there are a number of placeholders as these sections are dependent on the exact wording of the remedial fixes for the Bill.

CE asked members to review the document with the following questions/criteria in mind:

• does this approach meet the intended purpose, i.e. to assist PAs to review for compatibility with the UNCRC requirements for existing and proposed measures?
• clarity and user-friendliness: will this approach be clear and practical for public authorities to make use of?
• to what extent does this meet the diverse needs of public authorities with duties under the Bill?
• are there elements missing that it would be helpful to be included?

The following discussion was captured:

• complex distinctions between devolved and reserved matters – no comparative evidence or lessons from other countries, as Scotland is in a unique position
• a query was raised as to where should PAs seek legal advice? NH explained this will be at the discretion of PAs but confirmed that legal advice wouldn’t be coming from SG. This would either have to be provided by PAs in house or by an external source
• concerns around PAs being found incompatible or in breach following decisions made by Scottish Parliament. NH explained that the Scottish Parliament would also have a duty to not act incompatibly with the UNCRC requirements. There is likely to be a proposed amendment to the Bill to include a provision that is equivalent to section 6(2) of the Human Rights Act 1998 so that public authorities could not be found to have acted incompatibly if the underlying primary legislation cannot be read in a compatible way
• questions were raised around the UK Government’s legislative proposals in its Bill of Rights Bill which would repeal the Human Rights Act 1998. SG will inform members of any relevant implications or impacts for their consideration in the context of the statutory guidance should they arise

CE asked for written feedback on Paper two on the Compatibility Review Framework and send to LL or CE by 5th September.

Action: Members to consider this paper alongside the questions posed, and send any written comments to CE or LL by 5th September.

AOB

The next meeting will be held on Tuesday 13 September 2022.