United Nations Convention on the Rights of the Child (UNCRC): Embedding Children's Rights in Public Services Guidance Sub-Group minutes: March 2022

Attendees and apologies

In attendance

• Carola Eyber (Chair), Scottish Government – CE
• Nicola Hughes, Scottish Government – NH
• Eilidh Walker (Minutes), Scottish Government – EW
• Shona Spence, Scottish Government – SS
• Poppy Prior, Scottish Government – PP
• Ben Gaston, Scottish Government – BG
• Rebekah Cameron-Berry, COSLA – RCB
• Alistair Stobie, SOLAR – AS
• Darren Little, Dumfries and Galloway Council – DL
• Juliet Harris, Together Scotland – JH
• Tamar Jamieson, Police Scotland – TJ
• Dragan Nastic, UNICEF – DN

Apologies

• Debby Wason, Public Health Scotland

Items and actions

Welcome and introductions

CE welcomed the group and introductions followed.

Ways of working

The group were in agreement around meeting every second Tuesday of the month from 13:00 to 14:00 initially, with a view to meeting fortnightly should this become necessary. The timing of these meetings align with the monthly meetings of the Embedding in Public Services Group (every third Monday of the month) and UNCRC Strategic Implementation Board (every fourth Thursday of the month).

The group will report to the Embedding Public Services Group in the first instance and will also fed into the SIB as required.

The group discussed the draft Terms of Reference (ToR) and were broadly in agreement with the initial outline presented in the meeting. A copy of the ToR will be circulated with these minutes ahead of the next meeting and any feedback is to be noted to the Secretariat or at the next meeting.

Action: EW to send the draft ToR to the group with minutes.

Aims and priorities for group

The primary purpose of the group will be to support the Embedding Children’s Rights in Public Services Team with development of statutory guidance in relation to parts 2 and 3 of the Bill. The secondary purpose of the group will be to give consideration to the option to publish additional non-statutory guidance and/ or update existing guidance.

Clarification of what guidance is required under the Bill

CE gave an overview of the purpose of statutory guidance in relation to parts 2 and 3 of the Bill. Two sets of statutory guidance are required:

• guidance under section 10B in relation to part 2, section 6 (duties on Public Authorities). The Scottish Ministers must issue guidance to support the implementation and operation of part 2 of the Bill.
• guidance under section 16A in relation to part 3, section 15 (Rreporting duty of listed public authorities (PAs)). The Scottish Ministers must issue guidance regarding reporting duties of listed authorities’ in relation to section 15.

CE explained that prior to statutory guidance being issued (under either s.10B or s.16A) that consultation will be necessary. The consultation exercise can only take place after the Bill receives Royal Assent and once the relevant provisions have been commenced. The details and timings of the consultation exercises are yet to be determined but will be shared once confirmed. CE reiterated that the group will not be viewed as, nor act as, a substitute for the mandatory consultations required in the Bill.

Content of guidance affected by remedial work on the Bill

The Supreme Court ruling held that certain sections of the Bill exceed the legislative competence of the Scottish Parliament. These sections are currently under review and subject to ongoing remedial work. The Deputy First Minister wrote to the EHRCJ Committee on 23 February 2022 noting his proposal that the Bill be subject to a Parliamentary ‘reconsideration stage’. The exact timescale for this is not known at present.

NH explained how this relates to the development of Guidance on the Bill:

• SG are carefully considering the effect of the SC judgment, of particular importance for the group, in relation to the scope of s.6 of the Bill
• Notwithstanding the detail of the remedial action is yet to be confirmed, some work in relation to the guidance can progress i.e., by focussing in the meantime on devolved PAs with devolved functions. Once the exact nature of the amended provisions of the Bill are confirmed, the guidance can be fully aligned with it
• there will be no change to the ‘Listed Authorities’ under s.16 and the reporting duty under s.15

Points raised by the group in response to the discussion were:

• stakeholders expressed uncertainty about the effect of the SC judgment more generally, a query was raised about the status of UK Acts that are integral to child law in Scotland e.g., Children (Scotland) Act 1995
• guidance needs to be practical and fit for purpose so that it can be utilised by service providers on the forefront of service provision
• there was conversation regarding which parts of legislation are in scope, and which are not, and this is generating confusion. PAs asked for greater clarity in relation to the scope of the Bill. This clarity will be provided as soon as able to do so
• in terms of the statutory duties to be fulfilled by PAs, the guidance will need to be clear on these points. PAs may wish to obtain their own independent legal advice in preparation for commencement
• information and guidance on remedies and complaint procedures also needs to be made available. SG confirmed we are working with SPSO to develop a child friendly complaints model

NH noted that SG understand this is complex and that PAs readiness for the UNCRC implementation and knowledge of child rights differs across the stakeholder groups. However, it is helpful to hear reflections from the group and to identify issues and challenges from group members as guidance is developed. As the remedial work continues the group will revisit the issues raised here.

Group expectations of guidance

CE asked the group what criteria should be used to ensure that the statutory guidance is most useful for PAs. Feedback on expectations of the guidance from the group were as follows:

• targeting the guidance to those whose functions sit less obviously within the children’s rights sphere but whose work still affects children e.g., planning system. We already know education and health workforces who work directly with children are aware of children’s rights and the UNCRC but identifying those other workforces whose work indirectly impacts children needs to happen
• further consideration should be given to bodies and organisations who are commissioned by PAs. An example would be the need to set out how you would go about complying with your duties under the Bill when you are giving and/or receiving grants and commissioning services as a PA
• a suggestion was made in relation to taking inspiration from the Children’s Rights Scheme as an idea for the structure of the guidance. Including child budgeting and spending and an outline of general measures for UNCRC was also proposed
• assisting a public body to assess whether it is acting compatibly with the UNCRC is central
• the importance of including those children most at risk was suggested as well as making available accessible complaints mechanisms. It was suggested that a universal/generic guidance that looks at this would be helpful. PAs may wish to create their own sector specific guidance in addition to the statutory guidance. It is also an option for SG to publish additional non-statutory guidance in future
• CE noted that some of the suggested topics are likely to end up in non-statutory guidance which will be issued after the mandatory statutory guidance has been completed

Suggestions for prioritisation

Some members feel that sector specific guidance may be important for successful implementation of the Bill. Some members felt that universally applicable (covering all duty-bearers) guidance published by SG should form the framework, this could then be replicated and built on within sector-specific guidance produced by PAs themselves if they wished to.

CE noted that consideration has been given around universal versus sector-specific guidance and reaffirmed the intention is for universally applicable guidance to be issued by Scottish Government. NH noted that there are no limitations for sectors producing their own guidance. NH reiterated that the SG cannot be directive in their approach to guidance and are only able to create a blueprint within the remit of the Bill but that this can serve as a starting point to enable sector specific guidance to be created.

It was agreed that the need for a mechanism or tool to assist with reviewing compatibility with the UNCRC requirements (as defined in the Bill) was most important and the priority for the group.

Existing guidance and documents to consider

CE welcomed the group to provide further suggestions as to examples of resources for consideration by the group, to aid in the production of guidance and to send these through via email.

Action: members to contact CE with further suggestions as to format of guidance and existing examples.

JH shared a link to the Children and Young People (Scotland) Act 2014: Guidance on Part 1: Duties of Public Authorities in relation to the United Nations Convention on the Rights of the Child (UNCRC) noting it may provide a reference for the guidance relating to Part 3 of the Bill.

JH also shared a link to guidance from the Welsh Children’s Commissioner as a useful resource to aid in developing guidance under the Bill.

CE outlined the next step is to draft a short Options Paper around the compatibility review for guidance, which will be shared with the group in due course. This paper will provide some examples of possible approaches to the guidance.

Action: CE to draft and share short compatibility review options paper with the group ahead of the next meeting.

DL raised the issue that under the UNCRC Bill, PAs are due to have their first report submitted by 31 March 2023 but that the delay with the remedial work on the Bill may mean the timescales become challenging. He suggested that a solution that still requires public bodies to publish a report in 2023 would be favourable.

CE noted that and that Scottish Government are aware of this particular issue and are considering solutions. NH noted that the reporting duty under 2014 Act is still live even though there has been Coronavirus legislation which allowed for the option to delay in reporting. As it stands, there are still reports due under the 2014 Act currently.

Membership

Action: members to contact CE with suggestions of additional group members.

AOB

The next meeting will be held on Tuesday 19 April.