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

Attendees and apologies

In attendance

• Carola Eyber (Chair), Scottish Government – CE
• Luiza Leite (Minutes), Scottish Government – LL
• Fraser Gorn, Scottish Government – FG
• Amy Kerr, Scottish Government – AK
• Lyndsey Saki, Scottish Government – LS
• Dragan Nastic, Unicef – DN
• Rebekah Cameron-Berry, COSLA – RCB
• Jane Donaldson (on behalf of Tamar Jamieson), Police Scotland – JD
• Darren Little, Dumfries and Galloway Council, DL
• Rebecca Spillane, Improvement Service, RS

Apologies:

• Juliet Harris, Together
• Nicola Hughes, Scottish Government
• Susan Revie, Scottish Government 
• Debby Wason, Public Health Scotland
• Tamar Jamieson, Police Scotland
• Lesleyann Russell, Scottish Government
• Vicky Wan, Children’s Parliament 
• Sarah Rodger, SOLAR
• Nicola Hogg, SOLAR
• Julie Williams, CCPS

Items and actions

Welcome, apologies and introductions of first-time attendees

CE welcomed attendees, acknowledging the meeting had been rescheduled from 13 September 2022 in light of the national mourning period.

CE introduced Amy Kerr and Fraser Gorn, both from Scottish Government, as first time attendees.

Review of minutes and action points

Members approved the minutes from the meeting held on 9 August 2022, which will soon be made available on the group page. There were no outstanding action points.

Update on remedial work on Bill (LS on behalf of NH)

LS provided an update on the following key areas.

UK Government engagement

The Scottish Government (SG) are engaging with the UK Government over the proposed amendments, given the UK Law Officers’ power under the Scotland Act to refer a reconsidered Bill to the Supreme Court. This engagement will provide an opportunity to raise any issues in advance of the Bill being returned to Parliament.

Admissibility of amendments

SG are also engaging with the Parliamentary authorities to determine whether proposed amendments to the Bill are admissible at Reconsideration Stage. According to the Parliament’s Standing Orders, Reconsideration Stage is “for the purpose of resolving the problem which is the subject of… the decision of the Supreme Court”. This limits the nature of amendments that can be made during Reconsideration Stage, and so, by using this route, Parliament is limited to addressing the judgment of the Supreme Court.

Once Ministers are content with final amendments a motion will be lodged with Parliament asking for the Bill to be reconsidered.

SG are still on track 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 scrutinise the amendments.

Members asked about the timings around this and whether SG has any influence on timing. LS explained that the SG does not have control over the schedule, but that we will update members when possible.

Update on targeted engagement on transitionary reporting arrangements (LS on behalf of LAR)

As members were aware, Part 1 section 2 of the Children and Young People (Scotland) Act 2014 places a duty on listed authorities, including all local authorities and health boards, to report every three years on the steps they have taken in that period to secure better or further effect of the requirements of the UNCRC.  The first report under this legislation was due as soon as practicable after 31 March 2020.  

The Coronavirus (Scotland) Act 2020 allowed listed authorities to delay the fulfilment of this reporting duty when this would impede upon work done to prevent the transmission of coronavirus. These provisions expire on the 30 September 2022, with outstanding reports for the period 1 April 2017 – 31st March 2020 continuing to be due as soon as is practicable.

LS clarified the position on reporting for the Period 1 April 2020 to 31 March 2023. In the event that the UNCRC Bill receives Royal Assent before March 2023, the Scottish Government will delay the commencement of section 17, to repeal Part 1, section 2 of the 2014 Act. This will mean that the reporting requirements under the 2014 Act will remain and listed authorities should continue to prepare to publish a report covering the period 1 April 2020 to 31 March 2023, as soon as practicable from the end of the reporting period. This guidance applies irrespective of the commencement date of sections 15 and 17 of the UNCRC Bill.

SG continue to communicate with all listed authorities on their reporting duties. The next planned communication on the coronavirus legislation will include an update on plans for 2020-23 reporting and the first reports due under the UNCRC (Incorporation) (Scotland) Bill.

In terms of the first ‘Children’s Rights Report’ due under Part 3, Section 15 of the UNCRC Bill, SG are considering a range of options in relation to the commencement of section 15, and the timeline for the repeal of Part 1 of the 2014 Act.

SG recently conducted a targeted engagement exercise with stakeholders, including listed authorities, to seek their views on the use of transitional arrangements. This will inform the next steps.  

SG will continue to communicate with listed authorities on this and provide support and guidance to ensure they can meet their legislative duties going forward. 

Consultation on statutory guidance on Part 3 of the UNCRC Bill will be undertaken as soon as possible after Royal Assent, and finalised guidance will be published as soon as possible thereafter to support listed authorities to meet their reporting requirements. 

RCB asked for clarification on how these arrangements will apply in particular to listed authorities that will have to publish three reports within a short period of time.

Update provided post meeting by Lesleyann Russell

Although there may be a perception that several reports are due in quick succession, this is not the case. Reports for the periods 2017-20 and 2020-23 are under the Children and Young People (Scotland) Act 2014. The legislation states that the publication dates are as soon as practicable after the end of each three year period. The end date of the first period was 30 March 2020 and the second is 30 March 2023.

Some listed authorities will have delayed the fulfilment of the reporting duty for 2017-20, as per the Coronavirus (Scotland) Act 2020, when this would impede upon work done to prevent the transmission of coronavirus. This provision expired on 30 September 2022, therefore, 2017-20 reports continue to be due as soon as practicable.

SG have communicated with listed authorities on arrangements for reports for the period 2020-2023. This reporting cycle will be concluded under the Children and Young People (Scotland) Act 2014. Therefore, the due date for reports remains as specified in the 2014 legislation i.e. as soon as practicable after 31 March 2023.

LR provided the group with a link to the 2014 reporting guidance. Although the guidance suggests a number of frameworks to support reporting, the choice remains with listed authorities on how they satisfy the reporting duty. Support from the children’s rights unit is available for listed public authorities in fulfilling their reporting duties by emailing us at UNCRCIncorporation@gov.scot.

We understand that there is some uncertainty about first reports due under the UNCRC Bill. However, we are looking at options to make this first reporting cycle as manageable as possible for listed authorities.

Statutory guidance consultation groups to be consulted (LS on behalf of Susan Revie)

SG are now preparing plans for the statutory consultation on Part 2 and 3 guidance. Part 2 (section 10a) and Part 3 (Section 16a) of the Bill specify that the following groups must be consulted in relation to statutory guidance issued:

• children
• the Children and Young People's Commissioner Scotland
• the Scottish Human Rights Commission
• such other persons as the Scottish Ministers consider appropriate

SG recognise that many bodies may have an expectation to be invited to respond to the consultation.

This particularly applies to those bodies which may consider themselves a ‘public authority’ under the Bill, and therefore, subject to the duties in Part 2. This also applies to authorities listed under Section 16 of the Bill, national public bodies (including agencies of SG), and organisations across the private, voluntary and independent (PVI) sector - dependent on the nature of their functions.

SG are scoping options for potentially undertaking a targeted, rather than full public consultation, in order to facilitate a quicker timescale for a complete analysis of the responses received, allowing officials the time to rectify and apply feedback received from consultation responses ahead of publication of the guidance. Therefore, we require an approach which allows us to create a targeted consultee list without unintentionally preventing particular groups from responding, e.g. by geography or function.

The PVI sector is the broadest group, and given the nature of their functions, it is not possible to definitively quantify the size of this audience, or propose an exhaustive list of organisations. SG have reviewed the main stakeholders, who progress the realisation of children’s rights as part of their core business and engage in groups such as this one, Children Services Planning Strategic Leads and The Observatory for Children’s Human Rights Scotland.

SG are also keen to identify further appropriate representatives from the PVI sector to complement this. SG are keen to hear views from the guidance group, to inform the list of groups who should be included for consultation, with a particular focus on considering representation from the private, voluntary and independent sectors.

RCB suggested that COSLA, SOLAR and Social Work Scotland should be included in the list. Others will send in their thoughts on who should be included via email to Luiza Leite.

Compatibility review framework feedback and discussion (CE)

CE reminded members that this draft document (with placeholders for the remedial fix) had been circulated for the last meeting in August. She described the three steps of the proposed review framework and encouraged members to provide comments on the document. SG would appreciate some feedback before driving this forward.

A question was asked about the difference between step two of the compatibility review and a CRWIA. CE explained that there would be a screening stage in step two which would assist users in analysing whether the compatibility duty applies to specific functions and measures but that there is currently a placeholder as the remedial fix is awaited. In addition, step two would contain a list of all the articles which form part of the UNCRC requirements as per the Bill against which users can review their specific measures or functions.

Proposed dates for guidance sections for subg-roup comment (CE)

As the meeting ran out of time, CE agreed to share with members via email a timetable for reviewing and discussing upcoming guidance sections.

Any other business

RS highlighted that the Improvement Service are hosting a webinar on CRWIA on 3 October 2022 with a focus on engaging children in the process – a sign up link was shared with members.

A link was shared with members for a resource titled Understanding Children's Human Rights - A Guide for Elected Members In Scotland published by the Improvement Service on 3 August 2022. 

The next meeting will be held on Tuesday 8 November 2022.