5. Responses from organisations representing the views of children and young people
This appendix provides a stand-alone analysis based on consultation responses by eleven respondents identified by the Scottish Government as being organisations that represent the views of children and young people. These eleven responses have also been considered as part of the overall analysis in sections 2, 3 and 4.
The responses included in this analysis are those received from the following:
Children at Harmeny School
Children in Scotland
East Ayrshire Children and Young People’s Cabinet
Glenrothes Youth Forum
Highland Children and Young People’s Forum
LGBT Youth Scotland
Our Hearings Our Voice
Scottish Youth Parliament
Scottish Learning and Disability Commission
Youth Link Scotland
The analysis should be considered alongside that presented in the preceding sections of this report, as many of the points raised reflect issues raised by other organisations. The views presented combine responses by organisations and also views of children and young people collected by these organisations during consultation events, young people’s forums and workshops. In the case of consultation questions that included closed questions we have presented the number of respondents within this sub-group who answered yes/no/don’t know or who did not answer or did not specify a response.
Theme 1: Legal mechanisms for incorporating the UNCRC
Question 1: Are there particular elements of the framework based on the HRA as described here, that should be included in the model for incorporation of the UNCRC in domestic law? Please explain your views.
Ten out of thirteen organisations representing the views of children and young people answered ‘yes’ to this question. One answered ‘don’t know’ and two other respondents did not specify an answer to the closed question in their written submission.
Organisations representing the views of children and young people emphasised that the model for incorporation should provide a duty for public authorities to comply in order to ensure public authorities do not act incompatibly with the UNCRC. They noted that the HRA framework contains important mechanisms to ensure compatibility with the ECHR and provides redress and remedy if these rights are breached. It was suggested that similar mechanisms should therefore be included in the model of UNCRC incorporation for Scotland.
“Children’s rights must be legally binding in courts and tribunals across Scotland, and all public authorities should be legally obliged to act in a way which is compliant with the UNCRC and the Optional Protocols to which Scotland is a signatory.”
Some organisations included in their consultation responses references to views collected by young people during consultation events. One such organisation noted that young people felt that there should be provisions to enable the framework to be updated and revisited, ensuring the needs of children are met ‘continuously’. Young people consulted noted that the framework should go beyond ‘the minimum standard’. Another response which presented the views of young people emphasised the importance of ensuring accountability and compliance with the ECHR.
“…young people in our group believe that a statement on any new bill explaining its compatibility with the UNCRC would help maintain a consistent level of accountability with regards to the rights of children and young people. They agree with the principle of section 3, that legislation must comply with the ECHR as far as possible because this another means through which the rights of young people in Scotland can be upheld.”
Several organisations representing children and young people noted that they support the position of The Children and Young People’s Commissioner Scotland and Together in response to Question 1.
Question 2: Are there any other aspects that should be included in the framework? Please explain your views.
Eleven out of thirteen organisations representing the views of children and young people answered ‘yes’ to this question, proposing that there should be other aspects included in the framework. One answered ‘don’t know’ and one other respondent did not specify an answer to the closed question in their written submission.
Calls for a proactive and preventative approach to upholding children’s rights were prominent in consultation responses by organisations representing children and young people. It was suggested that children and young people may not be fully aware of their rights, underlining the need for public authorities to be proactive in ensuring rights are safeguarded and promoted, as opposed to solely reacting to situations in which rights are breached.
One group of schoolchildren, whose views were fed into the consultation ‘liked the idea that everyone involved in their lives would be involved in promoting their rights’.
This category of respondents also emphasised the value of placing a duty on Ministers to have ‘due regard’ to the UNCRC in the exercise of their functions. This would ensure that children and young people’s rights are at the forefront of policy and decision-making.
It was suggested that a CRWIA should be presented alongside any new bill laid before the Scottish Parliament. This, respondents argued, should be in addition to a statement of compatibility and would ensure that the rights and wellbeing of children and young people are given full consideration during the development and implementation of new legislation.
One organisation noted that the framework should specify ‘key actions’ and duties for those delivering services to and on behalf of children and young people, including schools.
Question 3: Do you agree that the framework for incorporation should include a ”duty to comply” with the UNCRC rights? Please explain your views.
Ten out of thirteen organisations representing the views of children and young people answered ‘yes’ to this question, agreeing that the framework for incorporation should include a ‘duty to comply’ with rights included in the UNCRC. One did not answer the question and two respondents did not specify an answer to the closed question in their written submission.
In their comments, respondents noted that a duty to comply would ensure compliance and accountability. It would mean that it is ‘incumbent on public bodies and Ministers to comply’, leading to positive impacts on children and young people. One organisation noted that incorporation should mean that protecting and promoting children’s rights is binding and not simply ‘guiding’.
The voices of children and young people featured prominently in some responses, setting out views in favour of including a ‘duty to comply’:
“It’s important because if you don’t make children’s rights law, then there will still be children that need help. If they are made law, then more adults will listen.”
“All of the young people felt there should be a”duty to comply” with the framework for the UNCRC. The young people felt that if this was the case for the Human Rights Act, why would this be any different for the rights of young people specifically. This would ensure that any work being undertaken is compatible with the UNCRC, but the young people felt that any public authority should also be required to give evidence of this. This would allow each to demonstrate not only that their work is compatible but also to identify improvements that could be made in order to do more.”
“Enforce children’s rights instead of just letting it be optional...”
(Views of children and young people in consultation response)
Some respondents felt that a duty to comply would have particular benefits in supporting the rights of groups with protected characteristics, including LGBT and disabled young people.
Question 4: What status, if any, do you think General Comments by the UN Committee on the Rights of the Child should be given in our domestic law?
The children and young people’s organisations who answered this question considered that the UN’s General Comments should be used to help interpret and support the implementation of the UNCRC. Respondents noted that this will ensure Scotland keeps pace with developments in international human rights law, while also being able to apply learning in a way that is appropriate in the Scottish context.
“General Comments have been used effectively since 2001, providing clarity and consistency, and ensuring that the UNCRC is relevant in an ever-changing world. In other European nations who have incorporated the UNCRC, UN Committee General Comments and Observations are seen by the courts as a valuable tool for interpreting the Convention.”
Responses also pointed out that General Comments and Concluding Observations help rights holders to understand and interpret their rights. It was suggested that courts should be able to refer to these when complaints are raised about breaches of children and young people’s rights.
One organisation drew attention to the importance of using the General Comments to support the interpretation of individual articles, noting that this could be the case in respect of Article 23 of the UNCRC, which refers to the rights of children with disabilities.
Question 5: To what extent to you think other possible aids would provide assistance to the courts in interpreting the UNCRC in domestic law?
Children and young people’s organisations underlined the need to learn from countries where the UNCRC has been incorporated. Respondents also noted that Scottish courts are used to drawing from the UNCRC when considering cases under the HRA and wider EU legislation.
“A United Nations database provides access to jurisprudence from caselaw considered by United Nations Treaty Bodies including the Committee on the Rights of the Child, the Human Rights Committee and the Committee on the Rights of Persons with Disabilities. This resource allows access to a vast body of legal interpretation of international human rights law that has developed over a number of years.”
Youth organisations echoed the submission by Together, drawing attention to the body of jurisprudence that is emerging through case law in Sweden, Spain, Norway and Belgium, among others.
“It was agreed by all of the young people that it can only be positive to learn from other communities on how they successfully incorporated the UNCRC and the challenges they faced. This would allow the Scottish Government to understand what works and what doesn’t in their approach. In order to incorporate the UNCRC successfully there needs to be as much information and advice as is possible in order to make informed decisions. The young people felt this was about coming together to support each other and learn.”
In incorporating the UNCRC, attention should be given to other jurisdictions that have fully incorporated the UNCRC into their domestic law systems and have upheld the rights of LGBT young people.
“We know from experience with the Equalities Act (2010) that there are significant gaps in case law in relation to LGBT people in the UK; this means that there is often ambiguity on how the Act is interpreted and limits the meaningful realisation of equalities.”
Question 6: Do you agree that it is best to push forward now with incorporation of the UNCRC before the development of a Statutory Human Rights Framework for Scotland?
Ten out of thirteen organisations representing the views of children and young people answered ‘yes’ to this question, proposing that the Scottish Government should push forward with incorporation at the earliest opportunity - and within the current parliamentary session. Two answered ‘no’ and one respondent did not specify an answer to the closed question in their written submission.
Respondents pointed out that children and young people have made their views clear through the Scottish Youth Parliament’s ‘Right Here, Right Now’ campaign in 2018, and argued that there should be no delay to await the development of a Statutory Human Rights Framework.
“The First Minister has committed to incorporating the UNCRC within this Parliamentary session. It is essential that this promise is upheld, not only to underline Scotland’s commitment to children’s rights but also to strengthen existing work to support and protect children and young people, and to improve the outcomes for some of the most vulnerable members of our society….full and direct incorporation of the UNCRC now would capitalise on the momentum provided by the Year of Young People activity and would ensure a fitting legacy for a year where children and young people clearly demonstrated their enthusiasm for shaping Scotland’s future.”
“2019 marks the 30th anniversary of the UNCRC. Introducing a bill to parliament this year would serve as a timely demonstration of the Scottish Government’s belief in the principles of the UNCRC.”
Children and young people’s views were set out in a number of consultation responses. There was unequivocal support for pushing forward now in some quarters: ”The children felt that now was the right time to make this happen!” Other organisations also outlined reasons behind the need for prompt action, noting:
“Through our work with children, parents/carers, professionals, and decision-makers, it is clear that there is still a lack of awareness and understanding about children’s human rights and how they keep children healthy, happy and safe. As a result, children continue to face difficult and sometimes traumatic circumstances that infringe upon their rights and reduce outcomes for their later lives. Children have been, and continue to be, failed by the adults and systems around them and therefore any delay in moving forward with incorporation will continue to place children at risk of harm.”
Another organisation noted that children and young people have been advocating enshrining children’s rights as law in Scotland for over 20 years since the establishment of the Children’s Parliament, and that many children and young people are ‘often dismayed to learn that children’s human rights are not already law in Scotland’. Young people consulted noted that momentum and support have been built for the incorporation of the UNCRC and felt that this ‘should be capitalised on while it is a priority’.
“With an uncertain political climate, the young people didn’t want the incorporation of the UNCRC to get lost or forgotten, especially when so much work has already gone in.”
“Can't wait, there is significant demand and need for this amongst young people and an election may possibly result in a government where this is no longer priority or part of the programme for government.”
“I think that children’s rights should be a law because if a kid can’t get their rights, it can ruin their day or even their life.”
A small number of children and young people’s organisations disagreed with the proposal to push forward now with incorporation. These organisations felt that it was important to get incorporation right, which may require further discussion about needs and rights as they apply to certain groups, including children and young people with learning disabilities.
Question 7: We would welcome your views on the model presented by the advisory group convened by the Children and Young People’s Commissioner in Scotland and Together (the Scottish Alliance for Children’s Rights).
A clear majority of children and young people’s organisations (11 out of 13 respondents) were supportive of the model presented by the Children and Young People’s Commissioner Scotland and Together. Respondents welcomed that the model sets out children’s rights clearly and comprehensively, and advocates: direct incorporation of UNCRC into Scottish domestic law; a duty on public authorities to comply with UNCRC proactively; and ‘due regard’ given to UNCRC in law, recognising children and young people as rights holders. Organisations representing the views of children and young people expressed the view that direct incorporation was the most desirable way to incorporate the UNCRC into domestic law. Some made the distinction between the model presented by Together and a transposition model, which they considered a less attractive approach.
“[we] believe that the UNCRC is clear and comprehensive and rewriting the articles as a suite of Scottish Children’s Rights risks diluting its principles and undermining children’s rights.”
“… we recognise the importance and impact that a rights-based culture can have on the experiences of and outcomes for children. Incorporating the UNCRC into domestic law is a huge step, but one that needs to be supported by broader measures to spur a larger culture change in Scotland. In addition to legal protections and mechanisms for remedy and redress, there needs to be a holistic approach to incorporating and implementing children’s human rights so that children grow up in an atmosphere of happiness, love and understanding.
“Rights should be part of the culture of life.”
“Ministers need to think about us and tell the truth. They need to know how we are feeling and what we think. So, speak to more children and visit more schools and communities. But really do it, not just see it in the paper.”
Not all respondents were supportive of the model, however. One respondent noted that the young people with whom they had consulted felt that this approach ”didn’t make sense”. This response noted that young people felt the model did not give sufficient consideration to the specific needs of children in Scotland.
“…by not tailoring the UNCRC to Scotland the rights of children could be lost and confused by those interpreting them. For the rights that are suitable for a Scottish context, they should be directly incorporated but those that can’t should be interpreted for Scottish law.”
Question 8: How should the issue of whether particular UNCRC rights are self-executing be dealt with?
A number of children and young people’s organisations did not answer this question, noting that they did not consult on this level of detail.
Some respondents noted that the consultation distinguishes between articles which confer rights on children and other articles, which require action by states or duty bearers to prevent rights breaches. Respondents felt that this would not be a concern under a model of direct incorporation. Although a right may not be directly enforceable, in practice breaches to children’s rights can be addressed, with courts able to make a ‘declaration of incompatibility’ where primary legislation is incompatible with the ECHR.
One organisation’s response, which included the views of children and young people, emphasised the importance of clarity and communicating the UNCRC to rights holders.
“It needs to be clear to all children and young people the rights they have, but also the rights that are potentially self-executing and what this might mean for them and their circumstances.”
Question 9: How could clarity be provided to rights holders and duty bearers under a direct incorporation approach, given the interaction with the Scotland Act 1998?
Organisations suggested a need for accessible guidance, training, awareness-raising and other measures to provide clarity to rights holders. Some respondents provided further comments on ways in which greater clarity could be supported: these included:
- A public-facing campaign to make children and young people aware of their rights and what direct incorporation means;
- The development of learning materials that can be used as part of the Curriculum for Excellence, ‘allowing learners to explore what the legislation means in practice, allowing them to reflect on how it would impact on their lives’;
- A campaign which addressed and targeted each of the protected characteristics individually to highlight the different aspects of the UNCRC that can be employed, and would highlight to children and young people in Scotland how it can be most relevant to them.
‘…young people liked the idea that these reserved rights should be legislated for in the event that at some point these rights become a matter for the Scottish parliament because of possible constitutional change affecting what matters are devolved and reserved. This would ensure the rights of young people were protected from day one of the Scottish Parliament gaining any new competencies.’
Question 10: Do you think we are right to reject incorporating the UNCRC solely by making specific changes to domestic legislation?
Eleven out of thirteen organisations representing the views of children and young people responded ‘yes’ to this question, agreeing with the proposal to reject making specific changes to domestic legislation. One did not answer and one other did not specify an answer to the closed question in their written submission.
These respondents felt that the approach taken to date of implementing elements of the UNCRC into domestic law does not go far enough to ensure children’s rights are ”championed in society and fully enshrined in public policy and practice”. Respondents expressed the view that making specific changes to legislation did not amount to direct incorporation.
“[it] does not go far enough in codifying children’s human rights in Scots law. Only full direct incorporation fully upholds the range and extent of children’s human rights contained in the UNCRC and the Optional Protocols”.
“Yes – while we welcome the steps that have been taken in recent years to make specific changes to Scottish legislation that embeds a rights based approach this piecemeal approach would take far too long to complete, and therefore would not realistically deliver a consistent and comprehensive rights framework for children within a reasonable timescale.”
Question 11: If the transposition model was followed here, how would we best enable people to participate in the time available?
Representative organisations and children and young people themselves expressed opposition to the transposition model. Some of the responses drew on consultation events with children, young people and their families that took place across Scotland. There was consensus among these respondents that the transposition model was not viewed as being an appropriate route to incorporation, for a number of reasons:
“As the UNCRC is designed to be a comprehensive international standard, there is a danger that countries developing their own suites of rights could end up with narrower rights in the long term. Furthermore, direct incorporation allows Scottish courts to look to the work that the UN Committee on the Rights of the Child has done to develop how the UNCRC can be delivered in practice.”
“The repeated message was that while people found creating a Scottish suite of children’s rights superficially attractive, their preferred option was the full and direct incorporation of the UNCRC, giving children in Scotland the same rights as children in other countries that have incorporated the UNCRC.”
One respondent that works with children and young people underlined the important role of children in helping to shape and influence how the UNCRC is implemented in Scotland. This response also noted children and young people’s preference for direct incorporation and disagreement with a transposition model.
Question 12: What is your preferred model for incorporating the UNCRC into domestic law?
Almost unanimously, organisations representing the views of children and young people favoured the model set out in the Children’s Rights (Scotland) Bill, as drafted by the Incorporation Advisory Group convened by Together and the Children and Young People's Commissioner Scotland. All bar two respondents expressed the view that this model of direct incorporation ensures the UNCRC, General Comments, Concluding Observations and Optional Protocols are incorporated in an effective way in the Scottish context.
Respondents expressed agreement with the submission by Together, which noted that UNCRC rights are ‘interrelated and indivisible’. Respondents outlined that children and young people favour the direct incorporation model ‘because it exactly reflects the UNCRC and nothing would be left out, it would be fairer, and it would be more in line with what other countries are doing’.
Examples of the views of children and young people, as expressed in consultation responses, are provided below.
“If the UNCRC makes rights that are international, everyone should use those rather than alternative versions for different countries.”
“[Full incorporation] establishes what children and young people can do [and] how children and young people should be looked after.”
“If it's the same language, then it will be familiar to people who already know the UNCRC.”
“Some of these things sound like pros but they could actually be cons, like making something specific to Scotland [a suite of rights] sounds good, but then it’s not necessarily what other countries are doing so it could be missing some things out.”
“If we make good decisions [about how we incorporate the UNCRC], then other countries might look to us.”
Children also recognised that Scotland has an opportunity to be internationally recognised for putting into practice its commitment to children’s human rights through legislation that respects, protects and fulfils the rights outlined in the UNCRC and the Optional Protocols.
Organisations representing the views of children and young people with protected characteristics also noted that the whole convention should be adopted in order to retain the spirit of the UNCRC fully. This includes LGBT young people and disabled children and young people.
One children and young people’s organisation noted that their preferred model of incorporation was through a suite of rights with a long-term view to establish a Statutory Human Rights Framework.
“This is so long as the rights are determined by the courts as to whether they are self-executing and that these decisions are anchored by the UN Committee decisions, international examples and err on the side of affording the maximum protections to rights-holders.”
Another respondent advocated a blended model that combines the ”copy and paste” model with the ”transposition” model. This, it was suggested could involve:
“directly incorporating the parts of the UNCRC that can be in the context of Scottish laws, but interpreting the parts that don’t fit seamlessly to ensure the rights of children and young people in Scotland are respected.”
Theme 2: embedding children’s rights in public services
Question 13: Do you think that a requirement for the Scottish Government to produce a Children’s Rights Scheme, similar to the Welsh example, should be included in this legislation? Please explain your views.
Eleven out of thirteen organisations representing the views of children and young people responded ‘yes’ to this question, agreeing that a requirement to produce a Children’s Rights Scheme, similar to the Welsh example, should be included in the legislation. Two respondents did not specify an answer to the closed question in their written submission.
Respondents stated that a Children’s Rights Scheme would clarify the practical steps that Scottish Government and other public bodies are committed to undertaking in order to implement the UNCRC. A Scheme could also connect the measures already in place through current legislation and structures, and supplement them with further mechanisms to ensure accountability and transparency.
Based on experiences in Wales, it was felt that a Children’s Rights Scheme would also help to create opportunities for children, young people and wider stakeholders to inform how the UNCRC is implemented.
“The young people felt that [a Children’s Rights Scheme] would ensure that people are responsible for their actions and the implementation of the UNCRC is successful in Scotland. This would also help to raise awareness of the rights of children and young people. The young people felt that there would be no reason for incorporating the UNCRC if it isn’t going to be held to an appropriate standard and develop as society develops. It can help to support children and young people ensuring they are at the heart of decision making.”
Several organisations noted that they agree that CRWIAs should be a statutory requirement and one underlined that there should be a Parliamentary Committee with designated responsibility for scrutinising Scottish Government actions to ensure rights are being upheld both by the Scottish Government and duty bearers. In addition to CRWIAs, respondents noted that the Children’s Rights Scheme should ensure:
- Clear complaint procedures
- Regular reporting on compliance
- Participation of children and young people in the development and review of the Scheme
Question 14: Do you think there should be a ”sunrise clause” within legislation?
Six out of thirteen organisations representing the views of children and young people answered ‘no’ to this question, noting that there should not be a ”sunrise clause” in any legislation. One respondent answered ‘don’t know’ and three others answered ‘yes’. Three respondents did not specify an answer to the closed question in their written submission.
A mix of views were presented by children and young people’s organisations in response to this question. Those who responded ‘no’ noted that although public bodies will need time to prepare before the new legislation comes into effect the foundations for implementation should be largely in place.
Children consulted as part of the consultation exercise noted that while they did not want public bodies to rush any changes, which could result in decisions being made too hastily.
“Things don’t happen overnight, so they’ll need time to prepare and it takes years for laws to go through the process and be set. If it’s too short, then it’ll be rushed.”
However, children also underlined the need for the lead-in period to be defined and limited, ensuring that duty bearers are required to make changes over the course of a reasonable period of time. They noted the risk that allowing decisions to ‘drag on’ can leave them feeling ‘confused’ or ‘doubtful’ that anything will change: ”If it’s too long or gets extended, then it may never get done.”
A number of respondents were unable to answer or did not specify.
One organisation representing the views of young people noted that a ‘sunrise clause’ should be included in legislation as this would ensure ”certainty over when rights are coming into law as opposed to waiting for public authorities to bring it in on their own accord”.
Those who answered ‘yes’ referred to practical reasons for including a ‘sunrise clause’ in the legislation. They noted that such a clause would allow public authorities with time to review their internal practices and policies to ensure they are compatible and compliant with the new legislation. They would be able to assess the likely impact of new legislation, address any gaps in their services and develop new arrangements to ensure staff in their organisations are aware of the UNCRC.
“This would give authorities a time to comply which would mean it can’t be ignored but will also help to ensure children and young people know what to expect. As well as this, it would help to ensure all public authorities can put in place measures to support the rights of children and young people.”
Question 15: If your answer to the question above is yes, how long do you think public bodies should be given to make preparations before the new legislation comes into full effect?
Very few children and young people’s organisations provided additional information in response to this question. In the case of one organisation, a youth forum advised a period of four months in response to the question. Others argued for a longer period of time (up to a year) to provide opportunities for public bodies to prepare.
Question 16: Do you think additional non-legislative activities, not included in the Scottish Government's Action Plan, are required to further implement children’s rights in Scotland?
Eight out of thirteen organisations representing the views of children and young people responded ‘yes’ to this question. Two answered ‘don’t know’, one did not answer and two did not specify an answer to the closed question in their written submission. Those who responded ‘Don’t know’ noted that they did not consult on this question.
Those who did provide comments in response to this question noted:
- The need to raise understanding and awareness of children’s rights among children/young people and among duty bearers.
“Children cannot access their rights if they do not know about them and adults can overlook children’s rights if they do not understand them.”
- The importance of ‘meaningful’ engagement with children and young people.
“Meaningful engagement happens when participation is ethical, accessible, fun, informed, facilitated, resourced and one that leads to a dialogue whereby children as partners know what influence their contribution has made and understand the context of any decisions taken that differ from their contributions.”
- Inclusive engagement with children and young people from communities and with characteristics who are sometime under-represented or not consulted.
- The importance of advocacy services for children.
“Children and young people have frequently discussed the importance of receiving help, support and advocacy to enable them to assert their rights. They have particularly mentioned the importance of youth workers, mental health workers, teachers, social workers, counsellors and independent advocates.”
- Respondents referred to the cross-cutting nature of the UNCRC and the need to strengthen the links between children’s rights and other Scottish Government agendas.
“Realisation of the Scottish Government’s aspirations around adverse childhood experiences (ACEs) link closely with the progress that will need to be made in ensuring that children’s rights to protection and recovery under Articles 19 and 39 are delivered.”
Theme 3: Enabling compatibility and remedies
Question 17: Do you agree that any legislation to be introduced in the Parliament should be accompanied by a statement of compatibility with children’s rights?
Nine out of thirteen organisations representing the views of children and young people responded ‘yes’ to this question, agreeing that any legislation to be introduced in the Parliament should be accompanied by a statement of compatibility with children’s rights. One did not answer and three did not specify an answer to the closed question in their written submission.
Respondents noted that there is a precedent for statements of compatibility established through the HRA and the Scotland Act 1998.
“By including a statement of compatibility about children’s human rights, the Scottish Government is recognising the international importance of the UNCRC and establishing the place it holds legally and culturally in Scotland.”
Children’s views were included in a number of consultation responses. They expressed views about the importance of such statements in ensuring that children’s rights are at the forefront of policy and legislative processes, whilst also acknowledging that this may result in additional pressures on officials when drafting Bills.
“It makes [new laws] safer for children.”
“We need something to prove it follows children’s rights.”
“A Minister needs to know that when they make a decision about anything, he or she has to have your best interests and rights at heart.”
“It probably will make children’s lives safer, but the Scottish Government’s jobs harder and it might take longer to pass things.”
A number of respondents also noted that a statement of compatibility should be accompanied by a CRWIA that explains how a Bill ensures compliance with the UNCRC and mitigates against any negative impacts on the rights of children and young people.
Question 18: Do you agree that the Bill should contain a regime which allows rights’ holders to challenge acts of public authorities on the ground that they are incompatible with the rights provided for in the Bill?
Twelve out of thirteen organisations representing the views of children and young people responded ‘yes’ to this question. The other respondent did not specify answer to the closed question in their written submission.
Respondents considered that it was essential that there is an opportunity to recourse for children and young people if their rights have been breached. Respondents noted the importance of ensuring clear pathways to remedy and redress that would include a complaints system as well as full legal processes.
Children whose views fed into the consultation felt that it was important that 'something could be done' where their rights were not being protected and promoted. Respondents emphasised that the process of redress should be as accessible and uncomplicated as possible. There should be support made available in terms of advocacy or legal advice. ”The pathway to redress should be clear for both complaints that can be considered without reference to court as well as a clear path through legal measures if required.”
Linked to this, children and young people recognise that making complaints can be difficult and daunting. Responses noted that children can worry about not being taken seriously, or that their complaint will not lead to any change. Some children were concerned that making a complaint may lead to further problems or repercussions. Children and young people stated:
“Just because people have power, it doesn’t mean they’ll do the right thing.”
“Children might think adults might not take them seriously. They might think children are lying.”
“Children feel powerless.”
Respondents noted that the Bill should outline a:
“clear and accessible process for how children, or adults representing children, can raise complaints if they feel Scottish Government or other public bodies are not respecting or fulfilling children’s human rights, including access to the courts as a last resort.”
During consultation events, children and young people identified a range of individuals or groups with whom they would raise a complaint:
- Parents or carers
- Other relatives
- Teachers or pupil support
- Children’s Parliament
- Children and Young People’s Commissioner Scotland
- The local council
- MSPs or MPs
- Scottish Courts
Children and young people see their parents and carers as the primary defenders and upholders of their rights. Few children identified staff in public bodies as having a role in defending their rights.
Question 19: Do you agree that the approach to awards of financial compensation should broadly follow the approach taken to just satisfaction damages under the HRA?
Seven out of thirteen organisations representing the views of children and young people responded ‘yes’ to this question, signalling that they agreed that the approach to awards of compensation should follow the approach taken to just satisfaction damages under the HRA. Two answered ‘don’t know’ to this question and four did not specify an answer to the closed question in their written submission.
Relatively few comments were received in support of answers to the closed question.
Those respondents who did comment noted that financial compensation as a means of providing ‘just satisfaction’ is an established or a ‘tried and tested’ method. One organisation noted that, in addition to financial compensation and reparation, the approach should also include:
‘measures to promote physical and psychological recovery, rehabilitation and reintegration’
Echoing this, another response noted that young people felt that the most important thing was that support for recovery was available, as is set out in Article 39 of the UNCRC – the right to recovery.
Respondents referred to the need to reach determinations on financial compensation by drawing on the experience of judges and other experts.
“Judges should be provided with suitable guidance about appropriate levels of reward in different circumstances."
“It was felt that this should be decided by experts on the UNCRC, with a ‘menu’ of fixed amounts that can be claimed or paid out.”
Young people whose views were set out in one response noted that ‘group claims’ should be allowed, with any financial compensation paid into trust funds, to allow the young people to benefit in the future.
Question 20: Do you agree that the UNCRC rights should take precedence over provisions in secondary legislation as is the case under the HRA for ECHR rights? Are there any potential difficulties with this that you can see?
Eight out of thirteen organisations representing the views of children and young people responded ‘yes’ to this question. Two answered ‘don’t know’ to this question and three did not specify an answer to the closed question in their written submission.
Very few supporting comments were provided. Those who did comment noted that UNCRC rights should take precedence, in line with the UN Committee’s standpoint that incorporation should mean that the provisions of the UNCRC prevail where there is a conflict with domestic legislation or common practice. This was considered essential to maintain consistency with the approach to wider human rights set out in the HRA.
Young people whose views were presented in one response felt that this should be decided on a case by case basis, ensuring that the rights of children and young people are respected, and that any outcomes are in line with the UNCRC.
“The UN Committee on the Rights of the Child is clear that incorporation should mean that the provisions of the Convention will prevail where there is a conflict with domestic legislation or common practice.”
“We believe that UNCRC rights should take precedence over secondary legislation unless a higher standard exists in domestic law. This is in line with Article 41 of the Convention.”
Question 21: Do you agree that the Bill should contain strong provisions requiring an ASP to be interpreted and applied so far as possible in a manner which is compatible with the rights provided for in the Bill?
Eight out of thirteen organisations representing the views of children and young people responded ‘yes’ to this question. Two answered ‘don’t know’ and three did not specify an answer to the closed question in their written submission.
One organisation noted that the Bill should contain strong provisions requiring an ASP to be interpreted in a way that is compatible with the UNCRC.
"This provision currently exists in the Human Rights Act (1998) and in the Scotland Act (1998) in relation to the European Convention on Human Rights. If a piece of legislation or provision at first appears incompatible with the UNCRC, then courts should try to read it in a way that does comply. This minimises the risk of incompatibility and ensures that courts interpret legislation in a way that supports children and young people’s rights."
Several comments echoed the views of Together, noting that the model of incorporation should ensure that courts:
“give effect to primary and subordinate legislation in a way that is compatible with the UNCRC”.
Question 22: Should the Bill contain a regime which would enable rulings to be obtained from the courts on the question of whether a provision in an ASP is incompatible with the rights secured in the Bill?
Nine out of thirteen children and young people’s organisations answered ‘yes’ to this question. One did not answer and three did not specify an answer in their written submission. No respondents from this category answered ‘no’.
Respondents suggested including ‘strike down’ powers within the model of incorporation, meaning that any law passed by the Scottish Parliament would no longer be considered a law if it was decided by a court that it breached the rights set out in the UNCRC.
“Yes. Courts should have the power to rule that an Act of the Scottish Parliament is incompatible with the UNCRC and to the declare the legislation unlawful… If an Act of the Scottish Parliament is found to be incompatible with the UNCRC, courts should have opportunity to allow the Scottish Parliament to make changes to the legislation to make it compliant with the UNCRC.”
Responses from children and young people indicated that they felt that such a regime should be incorporated, to ensure that any decision making is looking preventatively in the case of children and young people’s rights.
“it was important [for young people] that it was made clear what could be done when legal requirements were not followed.”
Question 23: Do you consider any special test for standing to bring a case under the Bill should be required?
Mirroring the responses across the whole group of respondents, there was some confusion evident in how this question was answered. In some cases, respondents who answered ‘yes’ and ‘no’ provided similar or related reasons for their answers.
No special test of standing should be required: children and others with ‘sufficient interest’ should be able to bring a case under the Bill when a public authority has failed to comply with the UNCRC. Respondents recommended a preventative approach to upholding children’s rights by introducing protective measures to ensure children’s rights are central to new legislation and in the planning and delivery of services.
“The model of UNCRC incorporation should include provisions to enable children and those with sufficient interest to bring proceedings (such as youth workers) if and when a public authority has failed to comply with the UNCRC or Optional Protocols especially when there are currently so many barriers to young people accessing justice. This approach would allow groups of children or their representatives like a youth worker to bring a case or complaint together for the young person.”
“[organisation name] believes that a person who claims to be affected (directly or indirectly) by an unlawful act, should be able to bring proceedings before a court or tribunal. The age of full legal capacity in Scotland is 16 years old however, children under this age can instruct a solicitor and bring a case under their own name if they have ‘a general understanding of what it means to do so’. This aligns with the principles of Article 12 of the Convention.”
This view was echoed by children and young people, whose views were set out in responses: children and young people expressed views (through forums and during consultation events) that it is important that they are heard and get the opportunity to raise complaints in court. However, they also noted that it would be unfair to require children – particularly young or vulnerable children – to bring cases or raise complaints in court. Therefore it is necessary to make provisions to enable children to be represented by adults or organisations in court.
“It is important that Scottish Government takes a broader definition of standing so that children can be represented by adults or organisations with ‘sufficient interest’ in the case, as proposed in the consultation paper.”
“We believe that bodies like the Scottish Commissioner for Children and Young People, the Equalities and Human Rights Commission and the Scottish Human Rights Commission are well placed to identify and challenge breaches of children’s rights that are affecting significant numbers of children and young people, and consideration should also be given to their ability to bring cases in the public interest as well as support cases bought by children or their parents."
“It was felt by the young people that there shouldn’t be any special test for standing to bring a case under the Bill. Those standing should be a person with best interests of child (teacher, doctor, health visitor, social worker) or an elected person or groups which advocate for young people. Children and young people should feel support and should trust those around them to support them and uphold their rights. Those supporting children and young people should also have the capacity to go through this process…”