UNCRC Strategic Implementation Board minutes: May 2022

Attendees and apologies

Scottish Government

• Michael Chalmers (Chair), Director for Children and Families
• Amy Harron, Children’s Rights Unit Head
• Ben Gaston, SGLD
• Carola Eyber, Capacity Building Manager
• Gita Sharkey, Rights Resolution Programme Lead
• Lauren Sorrell, UNCRC Implementation Programme Manager
• Liz Levy, Children’s Rights Unit Head
• Nicola Hughes, Embedding Children’s Rights in Public Services Programme Lead
• Paul Gorman, Empowered Children and Young People Programme Lead
• Poppy Prior, SGLD
• Shona Spence, UNCRC Bill Lead
• Susan Revie, Capacity Building Manager 
• Victoria Morton, SGLD
• Eilidh Walker (minutes), UNCRC Programme Assistant
• Kaylie Shaw (minutes), Policy Support Officer

Members of the Board

• Juliet Harris, Together Scotland
• Louise Hunter, Coalition of Care and Support Providers in Scotland (CCPS)
• Aidan McCrory, Care Inspectorate
• Ashleigh Pitcairn on behalf of Kay McCorquodale, Scottish Courts and Tribunal Services
• Dragan Nastic, UNICEF
• Des Murray, SOLACE
• David Wallace, Social Security Scotland
• Gayle Devlin, Social Security Scotland
• Norma Ruettimann on behalf of Jaci Douglas, Care and Learning Alliance (CALA)
• Ben Farrugia, Social Work Scotland
• Ann Bell on behalf of Gary Ritchie, Police Scotland
• Laura Caven, COSLA
• Richmond Davies, Public Health Scotland

Apologies:

• Andrew Preston, UNCRC Programme Assistant
• Carol Potter, NHS Fife
• Clare Simpson, Parenting Across Scotland
• Donald Henderson, Children’s Rights, Protection and Justice Interim Deputy Director
• Donna MacLean, Healthcare Improvement Scotland
• Fiona McFarlane, The Promise
• Gayle Gorman, Education Scotland
• Gina Wilson, Children and Young People’s Commissioner Scotland
• Michael Cameron, Scottish Housing Regulator
• Louise Halpin, Human Rights Bill Team Leader
• Jaci Douglas, Care and Learning Alliance (CALA)
• Jennifer Davidson, Institute for Inspiring Children’s Futures

Items and actions

Welcome and apologies

Michael Chalmers (MC) welcomed members of the Board and noted apologies.

Minutes and actions from last meeting

Minutes from the meeting of 7 April were shared with members and no amendments have been made.

MC reminded remembers that it is important they are comfortable with how discussions are captured as minutes are made publicly available.

Comments from the group:

• one amendment: a small mistake in the date, changing from 2001 to 2021
• request that sharing a risk register be added to the action tracker to keep members up to date with its progress

Action: Eilidh Walker to ensure the minutes are updated and to add the risk register to the action tracker for the Board.

UNCRC programme board update

The monthly highlight report was shared with members on 19 May 2022 and members were asked to consider this ahead of the meeting.

Lauren Sorrell (LS) updated the group with regards to the progress of key deliverables of the Implementation Programme:

• the invite to tender (ITT) process for the Skills and Knowledge Framework closed on 18 May 2022 and assessment of tenders will now begin
• the ITT process for the Innovation Fund closes on 9 June 2022
• the tender process for the Consortium closed in March, unfortunately no bids were awarded and the ITT with an updated specification will be reissued causing a delay to commencement of the project
• a new UNCRC Communication Network will be established to bring key stakeholders together to share and plan for a national campaign of UNCRC awareness raising among the public
• the Improvement Service have conducted their initial stakeholder discussions to better understand Public Authority (PA) readiness for commencement
• the Cabinet Take-Over report from 2021 has been published

LS noted that, following comments from Board members last month, the overall risk status for the implementation programme has been assessed as RED. This is to reflect the delay in the Bill gaining Royal Assent.

Comments from the chat function :

• request to include in the next report how the SG is supporting the development of a child friendly complaints mechanism for organisations that are not supported by the Scottish Public Services Ombudsman [Response: We’ll consider how we can share the model for child friendly complaints that’s developed by SPSO more widely across other public authorities to support good practice]
• request for an update on how SG have been auditing legislation to identify any areas of incompatibility. Liz Levy (LL) explained that we are not relying on a one-off audit. The progressive realisation of children’s rights will mean that this could quickly become out of step with expectations. Our approach includes paying close attention to: the voice of stakeholders (through, for example, the State of Children’s Rights report); children and young people (through, for example, the Cabinet Takeovers); and the UN Committee observations. We also recently met with the SHRC and CYPCS to explore areas where we need to improve our approach to children’s rights
• request for clarity about expectations of an audit for other public authorities. [Response – Proposed statutory guidance for Part 2 of the Bill would set out a ‘framework for compatibility’ in relation to the section 6 duties which PAs may wish to use, but there would be no statutory requirement to use this to conduct an audit. It would be a matter for individual public authorities to decide how to fulfil their section 6 duty. Guidance on Part 2 and 3 would be consulted on as soon as possible after the Bill receives Royal Assent (assuming it does), and would be published as soon as possible thereafter following the statutory consultation process]
• request for information about which working group is taking forward the review of the CRWIA template and guidance and which stakeholders have been included in this [Response - The refresh is of the version to be used within SG so we’re not involving wider stakeholders]

Update on progress in addressing the Supreme Court judgement

Liz Levy (LL) informed members that the Deputy First Minister (DFM) gave a statement to Parliament on Tuesday 24 May on where SG had reached in their consideration of the Supreme Court judgment. After the statement, LL sent the Board a link to the video recording of the DFM’s statement and the stakeholder engagement paper which:

• explains the Supreme Court judgment
• provides an update on our engagement with UK Government to explore potential routes to increasing the effectiveness of incorporation of the UNCRC
• sets out the proposed amendments to the Bill at Reconsideration Stage
• summarises next steps
• and invites responses to four questions to test views on the impact of the amendment on the policy objectives of the Bill and identify any issues as a result of these fixes

LL shared in the chat function a link to the transcript of the statement made by the DFM.

To fix the section 6 compatibility duty SG propose to expressly limit that duty to devolved functions and devolved bodies. To bring the Bill within competence, it is also necessary to add a provision (equivalent to that in the Human Rights Act 1998) that makes clear that a PA is not subject to the compatibly duty where the Act conferring its function can't be read in a way that's compatible with the UNCRC requirements.

The paper explains that, for devolved functions, if we were to become aware of an Act that can't be read in way that's compatible with the UNCRC requirements, then Scottish Ministers could either propose an amending Act or consider whether they can use the remedial regulation making power in the UNCRC Bill to address this.

The paper asks if these necessary fixes would minimise the impact on the policy intention in the Bill and whether stakeholders see any particular issues with the proposed fix.

The deadline for written responses to targeted engagement paper is Friday 17 June but initial reactions to the questions in the stakeholder engagement paper were invited during the meeting.

Initial responses from members of Together about the proposed fix for the Bill were positive but members asked for clarification about impact on section 6(3A) and (3B) of the Bill, which set out the duties on private, voluntary and independent (PVI) sector delivering public functions. LL stated that our expectations are that the amendments won’t impact on the duties for the PVI sector that were included in the Bill but agreed to seek confirmation. [Now confirmed. Provided a PVI setting is delivering a devolved public function, the compatibility duty would still apply.]

To fix sections 19 to 21, SG propose to remove UK Acts from the application of the interpretative obligation and the strike down and incompatibility declarator remedies but to retain application to Acts of the Scottish Parliament. The paper explains why this is a disappointing dilution of the effect of the Bill but also explains that the Scottish Parliament has the power to amend or repeal legislation in devolved areas, including UK Acts, and the Bill includes power to make remedial regulations – including in respect of UK Acts – where there are compelling reasons to do so. 

The paper invites views on the impact of this fix on the policy objectives of the UNCRC Bill and asks if the fix would leave any gaps in the protection of children's rights?

SIB members were pleased to see reference to the Children’s Rights Scheme in the paper, because the fix makes it even more important that we have ongoing review of legislation to ensure compatibility and that steps are being taken to address any incompatibilities.

UNICEF are happy with the content of the paper and will submit a full review in writing in due course.

Ben Farrugia agreed that the fixes seemed pragmatic but that we would need to consider carefully whether UK laws on reserved matters, that undermined children’s rights, could be replaced.

In response to a request for reassurance that there will be dialogue between Governments to ensure no further challenges, LL explained there will be further engagement with the UK Government via the Office of Advocate General.

In response to a request for more clarity about the timeline for Reconsideration stage, LL explained that it will be after summer recess before SG can lodge a motion for this but that the SG is hoping to have concluded Reconsiderations stage by the end of the calendar year.

In the SIB meeting on 25 November 2021, there was a discussion about other groups and organisations to be included in the targeted engagement. Following DFM’s statement, the stakeholder engagement paper was sent to:

• Scottish Youth Parliament
• Children’s Parliament
• The DCAF Collective Leadership Group
• The Justice Board
• The Youth Justice Board
• The Human Rights Advisory Group
• Health and Social Care Management Board
• Law Society (Head of Law Reform/Human Rights)
• SOLACE
• ADES
• SOLAR
• Children's Services Planning Strategy leads
• UNCRC Embedding in Public Services Reference Group
• National Child Protection Leadership Group

Members were asked to suggest others who should be included. Responses included:

• UNICEF UK (Scotland)
• Human Rights Consortium Scotland
• The Children and Young People’s Commissioner Scotland
• Scottish Human Rights Commission
• European Human Rights Commission
• the judiciary

LL explained that she’d been approached by the Scottish Trade Unions Congress and the Educational Institute of Scotland who have also asked to be included but has explained the need to keep the engagement focused and brief and the narrow nature of the questions.

Laura Caven informed the board that the timescales for providing written feedback may be challenging as COSLA leaders are not due to meet before the deadline of 17 June.

Action: Liz Levy to contact Ashleigh Pitcairn (AP) after the meeting about how to take forward an approach to the judiciary [Now included in targeted engagement and contacted via AP].

Action: members to submit written responses to the engagement paper by 17 June 2022

Update on the Innovation Fund

Nicola Hughes (NH) noted she wrote to members of the Board on 4 May 2022 to follow up on an action under item 8 of the meeting on 31 March, which was deferred until today’s meeting and noted one response from Police Scotland.

NH reminded members that at the previous meeting on 31 March she provided an overview of the feedback received from members to date in relation to the Skills and Knowledge Framework and the Innovation Fund. Following two ‘deep-dive’ sessions, and circulation of a ‘1 page’ note, we received invaluable input from members and were able to strengthen and reinforce aspects of the procurement for both projects.

One outstanding area of feedback from members was around targeting the fund to those children and young people that are furthest away from having their rights met.

NH reiterated the invitation to tender (ITT) for the Skills and Knowledge Framework has ended, and that the ITT for the Innovation Fund has been launched and will close shortly. This will not be impacted by the ongoing work to consult on the Fund, and views will help to inform the criteria and scoring framework once an Administrator has been appointed.

NH explained the overall aim of the Fund is to support the embedding of a rights based approach, and currently, criteria for funding is aligned to the UNCRC Implementation Programme (external drivers) and the Theory of Change (key change processes). These were set out within the paper shared with members. 

External Drivers:

• children experience everyday accountability in public services, children can get resolution of rights issues quickly
• children are treated equally and participate in decisions that affect them on an ongoing basis
• public services leaders listen and understand children’s rights and their lived experiences
• public services direct the “maximum extent of their available resources” towards implementation of children’s rights

Key change processes:

• policy adaptation, coordination, administrative integration and budgetary consideration
• building cross-sector capacity and capability to integrate rights-based ways of working
• changing attitudes, norms, values and everyday actions
• ensuring a system of information, advocacy, complaints, redress and effective remedy for children and young people

Five questions were presented to the group for consideration:

• would a project have to directly involve, or be aimed at a particular group of children to be considered as ‘targeted’?
• if it has to involve or be aimed at them, what is the ultimate outcome, is it to improve access of rights to those particular groups?
• would it be sufficient for an application to show how they will apply learning to further protect, respect and fulfil the rights of particular groups?
• do members have views on which groups of children the Fund should consider as being ‘further from their rights’?
• if a list of groups were to be drawn from these sources, would that be sufficient for the purposes of targeting the Fund and how might this affect the overall aim?

Comments received from the group included:

• how can we identify and establish what good practice looks like and create a targeted approach to ensure the rights of children are being fulfilled?
• some members felt that if a list of protected groups was created it should not be exhaustive
• other members didn’t welcome a list suggesting this should reach beyond the protected characteristics of the Equality Act, for example, children in poverty and cared for children – it is important to look at the intersectionality between these vulnerabilities
• there is a risk in missing children who are furthest for their rights that may not be in a specific group
• Police Scotland would also prefer not to have a list and instead draw from local resources

Juliet Harris (JH) noted she was involved in a briefing for parliament on the intersection that different children and young people and their families face and can share this with NH.

NH noted interest in receiving more feedback from the group on questions 1 and 2 and asked the group whether they felt a project should have to involve children and young people, or can it be aimed at improvements which affect them?

Responses from the group included:

• lived experience should carry weight
• would we be looking to develop projects that are looking at professional practice? In those discreet areas where we have identified challenges, is the Innovation Fund an applicable tool to rectify this?

NH noted that if the project were able to align to the key drivers of the implementation programme or change mechanisms within the Theory of Change then it would be eligible. NH noted consistent feedback from stakeholders around the size of the funding and the risk of it being over-subscribed. SG are keen to develop the Fund in a way which reduces this risk, including very specific eligibility criteria.

NH welcomed the chance to come back to the group once the eligibility criteria, and scoring framework was further advanced for the Fund.

Action: Juliet Harris to share briefing paper with Nicola Hughes.

Action: Nicola Hughes to come back to a future meeting to set out proposed eligibility criteria and scoring framework.

AOB

LL noted that if members wish to hear more about any project in the Implementation Programme in future SIB meetings, they should do so by contacting UNCRCIncorporation@gov.scot

JH noted chapter 4, page 78, of Together’s State of Children’s Rights report sets out perspectives from Together members on children whose rights are most at risk.

JH also noted that Together launched the Rights Right Now report on Thursday 26 May. This included a child friendly version.

Ashleigh Pitcairn (AP) noted that a second paper from SG to the Criminal Court Rules Council is still outstanding from last year. This relates to the request for changes to criminal court rules as a result of the UNCRC Implementation Bill, on the complex matters of time bar and clarity on SG’s position on how/if a third party can intervene in criminal proceedings. SG’s timeous engagement with LPPO/CCRC on this will affect delivery of rules to implement the Bill

On third party intervention, LL is finalising a submission for Ministers in collaboration with colleagues from Criminal Justice Division.

In addition, AP noted, SG advised the LPPO/SCJC in November 2021 that due to the UK Supreme Court judgment they would contact the Scottish Courts and Tribunal Services (SCTS) regarding the civil courts rules request when they could be clear about implications of any remedial action required as a result of the judgment for the courts and court rules. SCTS await a response when SG is in a position to do so.

A Civil Court Rules paper has been drafted. Our intention is to finalise the paper after the engagement period for the Bill. This will allow time to reengage with SCTS, LPPO and SCJC.

DN noted an update on the redrafted Terms of Reference for the Board would be useful. LL noted the revised ToR was attached with papers for this meeting and that it had been revised to reflect previous conversations. However, an agenda item can be included to have a discussion around the updated ToR.

Action: Eilidh Walker to send the updated ToR to the group and to add to next meeting agenda so that these can be formally approved.

JH noted the Theory of Change (ToC) report will be made public in early June and will be shared with members ahead of the next meeting. Public Health Scotland are looking at creating an action plan from the findings of the ToC which can be used as a case study for others organisations.

MC noted a future meeting focussing on the ToC would be useful.

Action: Eilidh Walker to include an agenda item for the ToC in a future meeting.

The next meeting will be held on Thursday 30 June 2022.