UNCRC Strategic Implementation Board minutes: May 2023

Attendees and apologies

Members of the board

• Andrew Watson (Chair), Director for Children and Families
• Dragan Nastic, UNICEF UK
• Gina Wilson, Children and Young People’s Commissioner Scotland (CYCPS)
• Juliet Harris, Together Scotland
• Nicola Anderson (LIT), replacing Noel Rehfisch, Scottish Courts and Tribunals Service
• CI Steve McKinnon of Police Scotland, deputising ACC Gary Ritchie
• Ben Farrugia, Social Work Scotland
• Helen Fogarty, Social Security Scotland
• Ashleigh Pitcairn on behalf of Kay McCorquodale, Scottish Courts and Tribunals Service
• Eleanor Kerr, Healthcare Improvement Scotland
• Laura Caven, Convention of Scottish Local Authorities (COSLA)
• Laura Pasternak, Coalition of Care and Support Providers (CCPS)
• Michael Cameron, Scottish Housing Regulator
• Craig Morris, Care Inspectorate

Members of Scottish Government

• Ian Donaldson, Deputy Director: Children’s Rights Protection and Justice
• Dean Snape, UNCRC Project Manager
• Andrew Preston, UNCRC Programme Assistant
• Carola Eyber, Children’s Rights Reporting and Monitoring Lead
• Gita Sharkey, Joint Unit Head, Children’s Rights Unit
• Liz Levy, Joint Unit Head, Children’s Rights Unit
• Lyndsey Saki, Embedding Children’s Rights in Public Services Programme Lead
• Paul Gorman, Empowered Children and Young People Lead
• Shona Spence, UNCRC Bill Lead
• Lesleyann Russell, Embedding Children’s Rights in Public Services, Children’s Rights Unit
• Anna Munro, SGLD

Apologies, members of the board

• Chloe Riddell, The Promise
• ACC Gary Ritchie, Police Scotland
• Norma Ruettiman, Care and Learning Alliance
• Margaret Gibb, Parenting Across Scotland
• Margo Williamson, SOLACE
• Kay McCorquodale, Scottish Courts and Tribunals Service
• Richmond Davies, Public Health Scotland

Guests

• Kavita Chetty

Items and actions

Welcome and apologies

Andrew Watson (AW) welcomed the board, including Nicola Anderson (NA) the new Scottish Courts and Tribunal Service representative who will be replacing Noel Rehfisch on the board moving forward. Helen Fogarty (HF) was also welcomed as the temporary lead for Social Security Scotland until a permanent replacement is identified. Apologies were given on behalf of those unable to attend.

Minutes and actions from last meeting

Dean Snape (DS) advised members that minutes from the previous meeting were circulated on 4 May 2023. No amendment requests have been received from members.

DS advised there were a total of 7 new actions from the March meeting, all of which are now closed. There was one outstanding action from previous meetings noted below:

• Laura Caven (LC) to share timeline of national policy and legislative changes that link to children’s rights

LC confirmed that she would forward the timeline as soon as she was able after the meeting.

Update on the Bill

Engagement has been taking place with lawyers for the Office of the Advocate General. A key purpose of this has been to explore how much coverage of functions in devolved areas - the power for which is provided in UK Acts - could be within the compatibility duty, without the UKG raising further concerns about legislative competence.

Public Authorities can’t be required to act compatibly when they’re delivering duties under powers in a UK Act that require them to act incompatibly. However, it is hoped the duty could apply when delivering duties under a UK Act that’s compatible with the UNCRC and when they’re delivering duties under a UK Act that gives them some discretion to act compatibly.

Engagement has been useful in helping to identify options that may be riskier in terms of another Supreme Court referral.

Alongside that, consideration is being given to what these options mean for complexity and accessibility of the provisions. The impact of the Bill will be undermined if the compatibility duty is too complex to understand.

The Supreme Court judgment was clear that the compatibility duty must not condition or place restrictions on the operation of a provision in a UK Act. That requires a clear distinction between Acts of the UK Parliament and Acts of the Scottish Parliament. However, there will be cases where a public authority is delivering a function that stems from a UK Act that’s been subsequently amended by a Scottish Act or statutory instrument or, in rare cases, that stem from a Scottish Act that’s been amended by a UK Act. A public authority can also be delivering duties under secondary legislation made under powers within Acts of the Scottish Parliament or Acts of the UK Parliament. So, there can potentially be many layers of legislation setting out the function, and we need to have rules about how these layers are treated within the compatibility duty.

When trying to achieve more coverage for the compatibility duty, we not only increase the risk of another referral, but we also increase the complexity for users. When deciding how far we should go in incorporating the UNCRC within the limits of our devolved competency, both of these considerations will need to be weighed up by Ministers.

As such, members were asked to consider the relative priority that SG should attach to:

• seeking as much coverage as possible for the compatibility duty
• seeking to minimise the risk of another Supreme Court referral
• making the compatibility duty as accessible as possible for users

Gina Wilson (GW) explained that the Children’s Commissioner had always assumed that the SG would, when amending the Bill, take the most risk averse approach and seek to minimise the risk of another referral.

To identify what this more risk averse approach would mean for coverage of children’s rights, GW and JH requested some examples of legislation that would fall out of scope for the compatibility duty. Liz Levy (LL) provided some examples of ASP amendments to UK Acts in devolved areas that could impact on children’s rights.

DN reminded the board that UNICEF has always encouraged the SG to take the safest route to incorporation and that undertaking a legislative audit would be a helpful approach to identifying and addressing legislation that needs to be amended to help uphold children’s rights.

JH emphasised the importance of children knowing whether there’s a redress for rights issues in various scenarios. She also emphasised that unless a UK Act requires them to act incompatibility, public authorities should be acting compatibility anyway.

Liz Levy (LL) explained that the assessment was that loss of coverage for UK Acts would make it more difficult for CYP to seek redress when a public authority fails to act compatibly when the act under which they are delivering their duties requires them to do so. Ashleigh Pitcairn (AP) suggested that this could be tested further in the development of court rules.

LL confirmed that there would be some targeted engagement with key stakeholders (SHRC, Children’s Commissioner, Together and UNICEF) on the options that ministers were considering before a final decision was reached and amendments could be shared.

Support for commencement

Lyndsey Saki (LS) shared an update on the current UNCRC resources and those in development.

Following engagement with the Guidance Subgroup the decision has been taken for contents in the draft statutory guidance on taking a child rights-based approach to be removed and added to an updated version of the non-statutory guidance. This will ensure that the statutory guidance is as clear and concise as possible and will also allow us to share guidance on taking a CRBA ahead of commencement of the Bill.

We have commissioned the Improvement Service to update two of their UNCRC resources for a general public authority audience. Their resource for Elected members has been updated for senior leaders across sectors and is now available as a guide for public services across Scotland. Their Getting Ready for UNCRC framework will be updated for a general audience and will be shared with SIB once complete. SG intention is to support the use of this in the health sector.

An Introduction to Children’s Rights e-learning module is currently in development for Scottish Government and Executive Agency staff. Options are being explored to allow this e-learning to be hosted on an external facing platform.

Work is ongoing on the Skills and Knowledge Framework project, led by JRS Knowhow in partnership with Together and Children’s Parliament. The team are also working closely with a professionals panel and children and families panel, to inform and shape the outputs. The final Framework is due to be completed in April 2024, but resources will be shared throughout, with the first set due this summer.

A regulation and improvement working group is being developed to support regulators and inspectorates to embed child rights considerations into their practice and the practice of the organisations they reach. Terms of reference have been drafted and are with stakeholders for comment. LS noted these can be shared with SIB, however, are still subject to change.

Action: LS to share Regulation and Improvement working group ToRs with SIB

The Embedding Children’s Rights team are also exploring the possibility of targeted support for health given that this is a universal service. Due to the complexities in the system, consideration is being given whether a similar model of support could be offered, as provided through the Improvement Service to local authorities.

JH noted that the work being carried out by the improvement Service has been excellent and that a similar model of support for health would be helpful. JH also queried whether a separate dedicated piece of work needed to be undertaken to support voluntary organisations and NGOs commissioned by public authorities to ensure they are prepared for commencement also: Together would be happy to work with the Improvement Service on this.

LS advised that universal guidance is being produced, however, agreed that some organisations may not realise that the duties will apply to them.

Action: LS and JH to discuss how to raise awareness with the private, voluntary and independent (PVI)

Launch of the Innovation Fund

Lesleyann Russell (LR) from the Embedding Children’s Rights in Public Services team updated members on the recent launch of the Innovation fund

The Scottish Government UNCRC Innovation Fund launched on 11 May. The fund forms part of the National Improvement Programme that supports Embedding UNCRC within the work of public bodies and local government. Applications are invited for project funding to initiate improvement and innovation activity that will support public bodies and local authorities to develop a child’s rights-based approach and embed children’s rights into culture, policy and practice.

The fund is valued at £500,000; it is anticipated that 10-15 grants will be awarded for work in the current financial year. In line with Article 12 we will be working with children and young people from Youth Scotland to support decision making and project evaluation.

The closing date for applications is 12 Noon on 29 June. Further information about the fund, eligibility criteria and application process can be found on the Corra Foundation’s webpage.

SG and Corra delivered an online information session to support fund launch on 23 May, with 88 attendees. In addition to setting out the policy context, aspiration for the fund and the application process they took a wide range of questions from potential applicants.

Key themes from the Q&A include clarification of the application process, partnerships/collaboration combinations, opportunity for 3rd sector to be involved in partnerships and resources required to support projects. A recording of the session and Q&A will be added to Corra’s Innovation Fund landing page shortly.

LR requested that SIB share details of the fund across their networks. Areas where we are specifically encouraging applications are health, justice, early years, disability and parts of local government that are not generally considered children’s services.

Action: SIB members to share Corra landing page across their networks

Reflections on state party examination by the UN Committee on the Rights of the Child in Geneva (18 and 19 May)

AW invited Ian Donaldson(ID) (Deputy Director (DD), Children’s Rights, Protection and Justice in the Children and Families Directorate) to provide an update on the recent State Party Examination by the UN Committee on the Rights of the Child in Geneva which forms part of the six-yearly reporting cycle under the UN Convention on the Rights of the Child.

ID advised the board that the main aim of the Examination was to determine what progress the UK has made in implementing the Concluding Observations issued by the Committee after the last examination. The Committee also asks about negative developments in child rights over the past six years.

Scottish delegates were asked about subjects including: The delay to the UNCRC Bill, Age of Marriage, Gender Recognition Reform Bill, and Stop & search police procedures, amongst others.  It is expected that recommendations on these issues, and others, will be included in the Concluding Observations to be published on June 1, 2023. SG will carefully consider the recommendations once published and determine next steps to be taken in response.

ID noted that it was an important event to reflect on progress as well as on areas for improvement in relation to child rights. ID, along with his co-delegate, Alison Taylor (DD for Improvement, Attainment and Wellbeing in Learning Directorate) had met with the CYP prior to Geneva to carry out a mock examination. It was clear from that engagement that the voice of children and young people was reflected in the questions posed by the committee.

Members congratulated Ian and those involved in preparing for the examination. JH noted that the concluding observations will be of importance to SIB moving forward and should help to inform the work of SIB and the overall implementation programme. DN asked whether there were any plans for the UK-wide delegation to meet again to discuss the Concluding Observations and engage in a UK-wide action plan in response to these.

ID noted his agreement that the list from the Concluding Observations will be important for advancing children’s rights. He also noted It would be for the UKG to lead on a UK-wide action plan but SG would be willing to be part of those discussions if approached by the UKG. 

Any other business

AW advised members that the children’s rights unit were working on a Freedom of Information request for all papers, correspondence and reports considered by SIB. The response is due on 24 May and, where appropriate, members have been contacted to advise on the release of any documents they provided.

AW noted that, following the decision to move to bi-monthly meetings, this will be the last currently scheduled meeting of SIB. A new meeting series will be issued however members were asked to consider if current timings remain suitable.

Action: SIB to notify secretariat of any proposed changes to SIB timetabling by 7 June 2023