UNCRC Strategic Implementation Board minutes: September 2023

Welcome and apologies

Andrew Watson (AW) welcomed the Board, apologies were given for those not in attendance.

Minutes and actions from last meeting

Dean Snape (DS) advised members that minutes from the previous meeting were circulated on 3 August 2023. No amendment requests had been received from members. Laura Caven (LC) reminder the group that at the last meeting, following discussion about the operability of the amendments to the Bill, she had suggested that we follow this up by giving other members an opportunity to share any comments by correspondence. This action had been missed on the previous minutes, Liz Levy (LL) explained that there was space on the agenda at the current meeting to discuss concerns in further detail and so dealing with this by correspondence may no longer be necessary

There were two actions raised at the July meeting and one outstanding action from a previous meeting. All actions have now been closed and relevant updates provided along with the papers for this meeting issued on 19 September 2023.

Highlight Report

DS noted that the programme Highlight Report was shared with members on 3 August 2023 and sets out progress against previous activities, upcoming priorities for the next 2 months and the current status of deliverables associated with the implementation programme. AW opened the floor for questions or comments.

Laura Pasternak (LP) requested that moving forward it would be helpful for the highlight report to include a progress update on the advocacy mapping work that Paul Gorman (PG) had informed the board of at the March meeting. PG confirmed that he would be happy to provide this moving forward.

ACTION: DS to ensure that future iterations of the Highlight Report Include an advocacy mapping update

Juliet Harris (JH) noted that the UNCRC Implementation Programme was due to end next year and as yet there was no commitment from SG for the implementation programme to continue beyond that point. Together would be keen to see the work continue once the Bill has passed, in particular, the work of Improvement Service and SPSO and sosome kind of commitment to continuity of those aspect of implementation would be really welcomed.

Liz Levy (LL) noted that continuation of work would be dependent on the budget that is assigned to the Children’s Rights Unit in the next financial year and thatwouldn’t be confirmed until early 2024..

Bill Update

Shona Spence (SS) shared that the motion inviting Parliament to agree to reconsider the UNCRC Bill was passed on 14 September. 

The amendments to the Bill were formally lodged with Parliament on 18

September, it is now for Parliament to consider next steps, in particular The Equalities, Human Rights and Civil Justice Committee. The process started with a briefing session to the Committee from the Bill team on 26 September which provided an overview of how we reached the decision about how to amend the Bill, the engagement with UKG , the risk of further referral, and the effect of the amendments.

The amendments to the Bill will be voted on in a reconsideration debate in Parliament and it is our hope that it will be through Parliament this year. Amendments can be lodged up until 4 sitting days before the reconsideration stage.

Amendments, according to the standing orders, must be for the purpose of resolving the problem which is the subject of the supreme court decision. This is in addition to the normal rules of admissibility that amendments need to be relevant and consistent with the general principles of the Bill.

In addition, we need to assess whether any amendments do not increase the risk of another referral to the supreme court judgment. This is the first time there has been Reconsideration so the process is novel for everyone however there are aspects that are similar to the normal Bill process.

Feedback on amendments and discussion of challenges associated with the fix for the compatibility duty

LL summarised concerns that have been raised (at the July SIB meeting and in correspondence since) about the implication of the fix for the Bill - specifically operating with a compatibility duty that applies when a public authority is delivering services under an Act of the Scottish Parliament but not when they are delivering these under an Act of the UK Parliament. She invited members to highlight any additional concerns that she’d missed or provide further detail and then she set out some initial ideas about how these concerns might be addressed/mitigated. The concerns and mitigations agreed were as follows:

The difficulty for children and young people in identifying when they can seek redress for UNCRC incompatibilities using the powers in the Bill.

This was recognised as a particular challenge. The Children’s Rights Unit agreed to consider if it would be possible to commission someone to maintain and make available a list of examples of functions, relevant to CYP, that would be in scope of the compatibility duty, in accordance with the revised definition of a “relevant function” in the Bill. It would not be possible to provide an exhaustive list and it would need to be very clear that this list wouldn't replace the need for parties to seek their own legal advice in individual cases. However, this could allow children and their representatives to begin to gain a better understanding of what public authority functions the duty could apply to.

LL also highlighted that SG provides grant funding to ensure that CYP have access to free legal advice.

Ben Farrugia (BF) asked about the practicality of producing this and LL explained that this would have to an iterative process that might begin with some untested examples that could be built on with real examples of circumstances in which CYP had secured redress. JH highlighted that there were likely to be others who were working up similar examples so this could be produced in partnership. Dragan Nastic (DN) suggested that, based on experience in other countries, we should not expect many cases, at least initially.

The ability to seek redress through the courts, in some circumstances but not others, could exacerbate inequalities for some CYP.

LL explained that the Cabinet Secretary for Social Justice has agreed to commission a review of UK Acts in devolved areas to identify those that interact with children’s rights in a way that might make it worth converting these into Acts of the Scottish Parliament so that they can be brought into the scope of the compatibility duty. However that would a long-term effort that would have to be carefully managed and paced so as not to put too much pressure on parliament’s legislative programme.

LL suggested that one way of prioritising any work to convert UK Acts would be to focus on those where doing so would have the potential to reduce inequalities. She offered to work with SIB to develop and finalise the specification for that review.

BF emphasised that it was important to acknowledge that if, in the context of current public sector funding pressures, the nature of the fix for the Bill did exacerbate inequalities, that may not be the fault of public authorities. Gina Wilson (GW)commented that the aim was to promote a cultural change so that rights are being delivered, regardless of ability to raise a legal case under the Bill. JH explained that it is the breach that creates inequalities not the ability to seek redress. DN stated that experience from other countries had shown that awareness of children’s rights was more important than legal remedies in driving positive change. BF suggested that the way we communicate the new duties to professionals will be key.

There could be circumstances in which a UK Act prevents a public authority from acting compatibility with the UNCRC.

LL highlighted that, if the legislation that confers their powers prevents a public authority from acting compatibly, the Scottish Government will want to identify those circumstances and, assuming the service is a devolved function, take action to resolve the incompatibility through legislative change. Section 32 of the Bill confers power on the Government to make remedial regulations to address an incompatibility (or potential incompatibility) between the UNCRC requirements and legislation. This power can be used to fix any incompatibilities in UK Acts in devolved areas, as well as in Acts of the Scottish Parliament.

Those who are delivering public services will be confused about what's required of them.

LL reminded the Board that the UK Government is already a signatory to the UNCRC, albeit it has not incorporated it into domestic law. Regardless of the scope of the legal duties in the Bill, the UNCRC is at the heart of the Scottish Government's commitment to ensuring that all children and young people have the best possible start in life, regardless of their circumstances. As such, public authorities s are encouraged to do all they can to implement the Convention and uphold children’s rights in any event.

CYP may be expecting a more transformational impact on their rights than can now be delivered.

LL explained that the SG has been clear that this has resulted in a disappointing loss of coverage, compared with what we originally hoped and will be careful about reflecting that reality. However, it is important to emphasise that the provisions in the Bill, as amended, will provide children with more protection than they have currently – albeit that we can’t go as far as we originally hoped – and that the Bill and wider support will promote cultural change for embedding a children’s rights approach in the delivery of all public services. LL is finalising Ministerial message to CYP to explain the coverage of the Bill and would be grateful if members of SIB wished to review this. GW, JH, LC, BF and Eleanor Kerr (EK) offered to review.

Review of Legislation

LL reminded the Board that, as well as a review of UK Acts in devolved areas to identify those worth converting to Acts of the Scottish Parliament, stakeholders have also called for an audit of legislation in devolved areas to identify UNCRC incompatibilities that need to be addressed. Ms Somerville also gave very careful consideration to this and has reached conclusion that an audit of this sort would bring very little added value beyond what is being or will be provided by other existing processes. LL set out the rationale for reaching that decision as follows:

Firstly, our understanding of what will constitute a legal incompatibility will evolve as the courts consider legal actions under the Bill. An audit would likely become out of date within a few years. Rather than a one-off audit, we already have an existing continuous process of reviewing our statute book, in light of evolving case law, policy development and societal change.

Secondly, the UK has been a signatory to the UNCRC since 1991 and we already have a responsibility to ensure that our legislation is compliant with international treaties, including the UNCRC.

Thirdly, we have existing robust mechanisms through which children's rights concerns are identified and raised with the Scottish Government. We have these mechanisms through the work of Together, the Children's Commissioner and the regular engagement between Cabinet and the Executive Team and children and young people. This is an important part of an ongoing, sustainable approach to identifying and prioritising any legislation that may need to be amended. We also have a list of recommendations from the UN Committee on the Rights of the Child about how we should be seeking to strengthen legislation, policy and practice over the next few years to deliver on children's rights. These have been informed by issues that are important to the children's rights community in Scotland. Considering what we could do to address those Concluding Observations would be a better use of resources in the immediate future.

Public Authority support for commencement

 Lyndsey Saki (LS) provided an update on the Public Authority support for commencement and shared some slides to present the information. 

 LS noted that the UNCRC Innovation Fund has a budget of £500,000, to support innovation and improvement projects led by local authorities and public bodies listed in s.16 of the Bill.  Applications were received from twenty three local authorities, seven NHS Boards and three other bodies. Several applications involved listed bodies working collaboratively with others, e.g. third sector. 

 LS provided the board with details of the projects which will receive funding. All applicants have been informed of decisions, however, formal offers have not yet been made so details of the projects cannot be shared outwith the board at this time.  Corra assessed eligible applications, rating the project plan and intended outcomes, fit with fund aims, evidence of need and involvement of children and young people. 

 Corra and SG have worked together to agree a longlist of the 19 top rated applications informed by advice from relevant policy teams. This was given to a Young People’s panel for them to review and agree a shortlist. Youth Scotland established and facilitated the Young People’s panel with seven members who brought relevant perspectives from groups prioritised in the Fund. The Young People’s panel recommended a shortlist of eleven applications, totalling around £650K.

Next, representatives from the Children’s Rights Unit and Promise team reviewed the young people’s report and relevant applications and chose eight projects for funding, totalling a little under £500k . 

Consideration was given to the spread across children at risk of not having their rights met, across UNCRC articles, across sectors and across regions. The final projects are all led by local authorities. However, the projects include partnerships with youth clubs, a charity, an arts organisation, Education Scotland, NHS Boards, and a University. 

LS noted that Corra will announce the funding decisions by the end of September,

and will support a peer group of the funded organisations, to ensure lessons are learned and shared. The Young People’s panel will continue their involvement, by informing how the projects will report on and share successes and learning.  

 Children’s Rights Scheme

AW invited Carola Eyber (CE) to provide members with an outline of our current proposals for how the Children’s Rights Scheme (CRS) will operate.

CE stated that the Children’s Rights Scheme – as laid out in Part 3 Sections 11-13 of the UNCRC Bill – requires Ministers to report on arrangements put in place to ensure that they comply with the section 6(1) duty to act compatibly with the UNCRC requirements and to secure better and further effect of the rights of children. Section 11(3) lists specific themes which need to be covered in the Scheme when it is first made. Ministers need to report on the arrangements and proposed actions in relation to the issues and rights listed in this section.

Once the first Scheme has been made and laid before parliament, Ministers need to report annually on actions taken and new actions proposed for the next reporting cycle. The CRS requires Ministers to consult children and young people, the Commissioner, the Scottish Commission for Human Rights and other persons considered appropriate on actions to be taken in the next reporting period before the report can be published.

The CRU has been drafting the content of this first CRS and is proposing to share this first draft with SIB in November. Members confirmed that they would be willing to review a first draft of the CRS in time for the next SIB meeting in November.

The CRU has also been thinking through the logistical requirements to comply with the reporting duty and would welcome the opportunity to discuss some of these with SIB, including the publication date of the first Scheme. CE noted that it is important to allow sufficient time to discuss what will be included in the first Scheme and at what level of detail, and to consult as widely as possible. In addition, work pressures on the unit over the coming months - means that the CRU would like some flexibility with the publication date of the first scheme. She therefore proposed that  the first scheme would be published in November 2024 and invited comments from SIB members.

Juliet Harris (JH) stated that the CRS would be an important mechanism for creating cultural change and it is therefore important to get the template for the first scheme right. She would prefer to see this done well and comprehensively rather than being rushed.

Dragan Nastic (DN) stated that in our national context, he was supportive of what was being proposed with respect to timing and would welcome sight of an early draft in November.

AOB

The Board agreed that it would be willing to receive and comment on a paper on the timing of commencement of the various provisions in the Bill by correspondence in October, in between meetings.

The next meeting of the UNCRC Strategic Implementation Board will be held on Tuesday 28 November, 15:30 – 17:00