UNCRC Strategic Implementation Board minutes: June 2022

Attendees and apologies

Members of the Board

• Juliet Harris, Together Scotland
• Ian McKinnon on behalf of Gary Ritchie, Police Scotland
• Dragan Nastic, UNICEF
• Jennifer Davidson, Institute for Inspiring Children’s Futures
• Ashleigh Pitcairn on behalf of Kay McCorquodale, Scottish Courts Tribunal Service
• Gayle Gorman, Education Scotland
• Ben Farrugia, Social Work Scotland
• Clare Simpson, Parenting Across Scotland
• Donna MacLean, Healthcare Improvement Scotland
• Aidan McCrory, Care Inspectorate

Guest attendees

• Kay Tisdall, University of Edinburgh
• Debby Wason, Public Health Scotland
• Eloise Di Gianni, The Observatory for Children’s Human Rights Scotland

Scottish Government

• Liz Levy (Chair), Children’s Rights Unit Head
• Carola Eyber, Capacity Building Manager
• Gita Sharkey, Rights Resolution Programme Lead
• Poppy Prior, SGLD
• Shona Spence, UNCRC Bill Team
• Andrew Preston, UNCRC Programme Assistant
• Lyndsey Saki, Embedding Children’s Rights in Public Services Programme Lead
• Dean Snape, Project Manager
• Luiza Leite (minutes), Policy Officer
• Kaylie Shaw (minutes), Policy Support Officer

Apologies

• Michael Chalmers, Director for Children and Families, SG      
• Nicola Hughes, Children’s Rights Unit Head, SG
• Paul Gorman, Empowered Children and Young People Programme Lead, SG
• Carol Potter, NHS Fife
• Fiona McFarlane, The Promise
• 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)
• Louise Hunter, Coalition of Care and Support Providers in Scotland (CCPS)
• Des Murray, SOLACE
• Michael Cameron, Scottish Housing Regulator
• Laura Caven, COSLA
• Richmond Davies, Public Health Scotland (Deputy attending – Angela Leitch)
• David Wallace, Social Security Scotland
• Gayle Devlin, Social Security Scotland

Items and actions

Welcome and apologies

Liz Levy (LL) stepped in as Chair at short notice. The Chair welcomed members of the Board and noted apologies.

Minutes and actions from last meeting

Minutes from the meeting of 26 May were shared with members ahead of the meeting.

LL confirmed the minutes will be revised and published following a recent amendment request.

Actions from the previous meeting are complete, with exception of the following which is still in progress:

• Nicola Hughes to come back to a future meeting to set out proposed eligibility criteria and scoring framework for Innovation Fund

UNCRC programme board update

The monthly programme highlight report was shared with members on 23 June 2022.

Gita Sharkey (GS) provided a brief update on some key deliverables of the Implementation Programme:

• the first  UNCRC Programme Update was issued to a wide range of stakeholders, including public authorities.  This update included information on the proposals for reconsideration of the UNCRC Bill
• a meeting took place with the Scottish Public Services Ombudsman (SPSO)  project lead, Josh Burnham, to discuss the programme, including the timeframe for delivery of project on child friendly complaints processes
• Aidan Flegg had joined the Unit.  He is providing specific input to the Children’s Rights Scheme and statutory guidance in relation to children’s rights budgeting

GS said SPSO are developing a communications strategy to support the child friendly model complaints procedures project and offered to share the first SPSO communication with board members.

Juliet Harris (JH) noted that the UNCRC Programme Update was really helpful, and suggested that all SIB members could be added to the circulation list as not everyone had received it. LL agreed and asked Programme Office to follow up with members.

Action: PO to distribute SPSO communication.

Action: PO to add SIB members to the UNCRC Programme Update distribution list.

Ashleigh Pitcairn (AP) asked about the draft paper on the compatibility review framework for public authorities and how widely it has been shared. Carola Eyber (CE) advised that it has been shared with the Guidance Sub-group for comments and discussion. The next meeting of the Guidance Sub-group is in August and we are aiming to share sections of guidance with this group in due course. CE also highlighted that there would be consultation on the draft statutory guidance as soon as practicable after Royal Assent to gather further stakeholders views.

JH noted that the priorities for next month don’t include actions in relation to the reconsideration stage and suggested that work on progressing the Bill should feature in all updates.  LL confirmed that Bill progress will be included in future updates.

Action: PO to add actions relating to the Bill to future updates.

JH welcomed Aidan Flegg’s new role as Child Rights Budgeting Policy Officer in SG, and asked how he was linking in with other developments such as the new Centre of Expertise in Equality and Human Rights. GS provided assurance that the team was aware of this and other related activities and had begun to make connections with wider work streams. JH said that a sub-group of the Children’s Sector Strategic Forum was focussing on child rights budgeting and offered to facilitate a meeting.

Action: Meeting to be arranged between Aidan and the child rights budgeting sub-group

JH asked if children under 14 would be involved in the development of consultation. LL agreed to take this back to Paul Gorman’s team for consideration.

Action: Paul Gorman to provide an update regarding the involvement of children under 14 in upcoming consultation work.

Update from targeted stakeholder engagement/next steps

Shona Spence (SS) led this session focussing on feedback received from the targeted stakeholder engagement.

For background, the purpose of this engagement was to ensure that key stakeholders understand the approach that we proposed to take to amend the Bill and why, and to help us understand any concerns that need to be aired before or during Reconsideration Stage

All of those who responded were in favour of the proposed fixes, recognising that they are necessary to address the Supreme Court judgment, whilst minimising the impact on the policy intent.

SS provided a brief summary of responses, including those from young people:

In relation to Section 6

(a) reserved bodies and functions: Some of the respondents highlighted that it could be difficult for public bodies to recognise which of their functions would be subject to the duties under section 6 of the Bill, given that their responsibilities could be conferred by a mix of devolved and reserved legislation.

• SS noted that this is not a new issue, as public bodies would already have had to contend with this question under the original Bill as passed, and these are issues that were raised during the original Parliamentary process

(b) PVI: Stakeholders are looking for reassurance that section 6 still applies to the private, voluntary and independent sector.

• SS highlighted that once the Bill has Royal Assent there is a requirement for consultation on, and the provision of statutory guidance. We will consider what guidance can be included to help public authorities determine which of their functions are subject to the duty

Judicial remedies

The lack of remedies for children in relation to legislation under UK Acts was also raised as a potential gap. It was suggested by various stakeholders that Scottish Ministers commit to a ‘gap analysis’ across both UK Acts, and existing Acts of the Scottish Parliament, with a view to bringing new compliant legislation or using the remedial regulations under the Bill to address  potential incompatibilities (if any) that are identified.

In the recent programme update to public authorities we have suggested that they may wish to bear in mind that the UK as a State Party has ratified the UNCRC and the First and Second Optional Protocols. This means that as a matter of international law, it is established good practice for all public authorities to respect children's rights, regardless of the source of their powers. At the same time, we are clear that the existence of an international law obligation on the UK as a State Party does not in itself create justiciable legal duties in Scotland.

It is also recognised that the Children’s Rights Scheme would be a useful tool in driving forward progressive realisation of children’s rights. The Scheme would set out the arrangements that the Scottish Ministers have made, or propose to make, to ensure that they comply with their obligations under section 6 of the Bill and to secure better or further effect of the rights of children.

Finally, stakeholders raised concern that the UK Government may again challenge the legislative competence of the amended UNCRC Bill when it is returned to the Scottish Parliament via Reconsideration Stage, which could result in a further reference to the Supreme Court. Stakeholders are therefore seeking reassurance that there will be advance engagement with the UK Government, to assess this risk, before the Bill is returned to Parliament.

SS laid out the following next steps for action:

• drafting amendments in line with the Deputy First Minister’s (DFM) stated intentions to Parliament, within the Standing Orders for reconsideration and addressing the issues that arose - to bring the relevant provisions within legislative competence and
• in tandem, move forward and discuss with Parliamentary Legislation Unit the desired process for the reconsideration of the Bill – highlighting it is a new process for everyone
• additionally, officials will continue to engage with UK Government in an open and transparent way, with a view to avoiding further challenge to the Bill
• Committee will be advised of the timetable for bringing the Bill back via the ‘reconsideration stage’

SS offered to share the letter submitted to the Equalities Committee setting out the next steps. Following a question from CS regarding the reconsideration process, SS also offered to share the link to the standing orders.

Action: PO to issue letter to the Equalities Committee referenced by Shona and link to standing orders. 

SIB Terms of Reference

SIB members have received the updated ToR for their consideration.

SOLACE raised (via email) that the ToR makes no explicit mention of resourcing or the Board’s role should related issues arise. In response, LL suggested including the following:

• “where necessary the Board will advise on how to address competing resourcing pressures to ensure that key elements of the programme are prioritised"

SOLACE also suggested that an amendment was required to point five in the ToR to include the voices of seldom heard groups. In order to address this, the following amendment was agreed:

• "the experiences, ideas and feedback from children, young people and their families, including those whose rights are most at risk, have been appropriately captured and included in decision-making"

Action: PO to circulate revised ToR with the minutes for sign off.

Theory of Change (ToC) report

LL invited Jennifer Davidson, Institute for Inspiring Children’s Futures, Kay Tisdall, The Observatory for Children’s Human Rights Scotland and Debby Wason, Public Health Scotland, to provide a short presentation on the Theory of Change (ToC) report and  next steps.

A link was provided to the ToC outputs.

Kay Tisdall provided a PowerPoint presentation on the ToC which will be shared with members.

The presentation covered some of the challenges when gathering evidence in the following areas:

• children’s rights budgeting and how this applies in practice
• social norms and areas of potential resistance. Debby Wason (DW) highlighted work with the Improvement Service in developing a framework between children’s services and Health and Social Care Partnerships (HSCP)s to implement the UNCRC. The framework currently has 11 items but work is still ongoing. DW found the ToC useful in providing a conceptual underpinning for that framework
• there was a discussion about whether the ToC should be a permanent item on the SIB agenda. LL felt that it would be better to use the ToC as a tool to inform programme planning, rather than something that gets reviewed at SIB. Members agreed with this approach, which can be reviewed in future if necessary

UNCRC programme alignment with the Theory of Change

LL led a discussion on how the work of the strands of the implementation programme are aligned with the drivers identified in the Theory of Change project.

LL highlighted the following areas where more focus is needed:

• we are aware we need to do more to raise awareness of UNCRC amongst policy makers. We recently issued our first programme update on the 9th of June to stakeholders and public authorities. Ann Skelton will also address the SG directors network soon
• the second driver that needs more attention is that children’s rights are integrated across policy areas. We need to identify areas where there are known concerns re children’s rights. We discussed Ann Skelton how to get the right balance between (a) identifying areas where there are known concerns and (b) working systematically through legislation to make sure we haven’t missed anything that needs to be addressed. Both are important but Ann recognised that our strong children's rights sector and our strong direct connections with children and young people means we're well placed in Scotland to identify known concerns. We'll set out some proposals for a two-pronged strategy that we'll consult on as part of the children's rights scheme
• we need to consider evaluation, and whether or not children’s rights are being met. We met with New Brunswick University to hear about their monitoring framework. This will be logged as an agenda item for a future meeting
• we can’t be specific right now in terms of an audit. The Children's Rights Scheme will set out our plans for identifying and addressing any situation where child’s rights are (or are at a significant risk of) not being fulfilled

LL noted that, at a future meeting in October, we will be inviting SIB to consider a communication strategy to raise awareness with public authorities.

Action: PO to make note in forward planner for this to return to SIB for consideration in October.

LL said we will report back to SIB on a regular basis to share a paper which sets out how our implementation programme aligns with the Theory of Change drivers.

Action: PO to devise paper as above

It was noted that we don’t have input on how those considering breaches of rights in the courts (the Judiciary) are trained. Although it is not for the UNCRC implementation programme to consider this, LL acknowledged that the SIB may want to seek reassurance on that.

AP referenced a letter sent from the LPPO detailing what courts are already doing to make processes as child friendly as possible, including information on training from the Judicial Institute.

Action: AP to forward letter sent from the LPPO

AOB

Lyndsey Saki has taken up post as Programme Lead for the Embedding Children’s Rights in Public Services Team within the Children’s Rights Unit, replacing Nicola Hughes. She highlighted that there are potential issues with clarity and timescales for public authority reporting on children’s rights. We will follow up with SIB on potential transitional arrangements.

The next meeting will be held on Thursday 25 August 2022.