United Nations Convention on the Rights of the Child - concluding observations 2023: SG initial response

3. Civil Rights and Freedoms

3.1 Right to an Identity

No: 25

Concluding Observation

Noting the decision taken by the State party to prevent the implementation of the Gender Recognition Reform (Scotland) Bill, the Committee recommends that the State party recognize the right to identity of lesbian, gay, bisexual, transgender and intersex children, and put in place measures to ensure that all adolescents enjoy their freedom of expression and respect for their physical and psychological integrity, gender identity and emerging autonomy.

In this context, the State party should ensure that any decisions regarding systems of gender recognition for children are taken in close consultation with transgender children and in line with children’s rights, including the right to be heard and the right to identity, in accordance with their evolving capacities, to free and informed consent and with appropriate safeguards.

Relevant section of Scottish Government’s November 2022 Position Statement

• Section 3.2 – Equalities and Inclusion in Relation to Particular Groups

Progress since November 2022

As noted in the Concluding Observations, the intervention of the UK Government using powers under the Scotland Act 1998 prevented the Gender Recognition Reform (Scotland) Bill from proceeding to implementation, despite it being passed by the Scottish Parliament with a large majority in December 2022.

In April 2023, the Scottish Government lodged a petition with the Scottish Court of Session for judicial review of the UK Government’s decision. On 8 December 2023, Lady Haldane ruled in favour of the UK Government’s pleas in law and dismissed the petition from Scottish Ministers. The Cabinet Secretary for Social Justice, Shirley‑Anne Somerville, made a statement on 20 December 2023 that the decision would not be taken to appeal but that the Scottish Government was still committed to the important reforms in the Bill, which would remain as a Bill passed by the Scottish Parliament.

Next Steps

• Given the intervention of the UK Government, the Gender Recognition Reform (Scotland) Bill cannot proceed at this time. The Scottish Government has offered to work with the UK Government to seek a solution.

3.2 Safeguarding Vulnerable Children Through Prevent

No: 26a

UN Concluding Observation

Immediately halting the targeting of certain groups of children in counter-terrorism measures, including through mandatory training of teachers, police and other relevant professional groups on the prohibition of discrimination and the right of children to freedom of expression and religion.

No: 26b

UN Concluding Observation

Continuing to assess the impact of the Prevent Strategy on children’s rights, and regularly collect and publish data, disaggregated by age, ethnicity and religious affiliation, on children referred to the authorities under the Prevent Strategy, with a view to ending the discriminatory, racial and stigmatizing impact of such measures on children belonging to minority groups.

No: 26c

UN Concluding Observation

Ensuring that counter-terrorism measures do not undermine children’s rights to freedom of expression, opinion and religion, and that children can exercise these rights without threats or intimidation.

Relevant section of Scottish Government’s November 2022 Position Statement

• Section 3.9 – Safeguarding Vulnerable Individuals through PREVENT

Scottish Government Position

Whilst Prevent is a reserved matter, it is delivered in Scotland primarily through devolved sectors. The Scottish Government has developed similar but separate guidance for Prevent Delivery in Scotland, including distinct Prevent Duty Guidance for Scotland and Prevent Multi-Agency Panel Guidance, which is the equivalent of Channel guidance for England and Wales.

The collective focus of Prevent in Scotland is always on the earliest opportunity to build resilience to divisive messaging within extremist narratives and engage with individuals who may be susceptible to becoming a terrorist or supporting terrorism.

There is no fixed profile of someone who may benefit from support in this context and the Scottish Government works closely with key partners to ensure proportionate responses to challenges across a broad spectrum of threat.

Refreshed Prevent Duty Guidance for Scotland, due for publication in 2024, will continue to reflect that key aspects of Prevent delivery in Scotland are rooted in prevention and wellbeing through existing frameworks such as Getting it right for every child (GIRFEC), which is linked to early intervention and improving outcomes for children in Scotland. Prevent work sits within existing structures in Scotland which seek to provide early support to prevent children from harm or the risk of harm.

Through national strategies such as the National Performance Framework and Curriculum for Excellence, practitioners are encouraged through relevant training to provide children with the opportunity to discuss and develop their understanding of wider beliefs and values and how these are fundamental in both local and global communities.

Definition of Extremism

Scotland did not adopt the UK definition of extremism, nor the UK Government Counter-Extremism Strategy. We recently published research (July 2023) undertaken to improve our understanding of extremism in Scotland in order to ensure our delivery of Prevent reflects the context and needs of Scotland.

Referral Data

Prevent referrals in Scotland are consistently and significantly lower than in England and Wales, with the majority of referrals addressing concerns in the Extreme Right Wing and Mixed/Unclear Ideology space.

Police Scotland publish Prevent referral data annually on their website. The most recent referral data for 2022-2023 indicates that of the 87 Prevent referrals, 37 (43%) were for concerns related to a mixed, unstable or unclear ideology. Thirty-one referrals (36%) were for concerns related to right-wing extremism, while 10 (11%) were for concerns related to Islamist extremism. The remaining nine referrals (10%) were for concerns assessed as No Prevent Issue. Please note, this is different to being assessed as not being suitable for Prevent Case Management, which was the case for 43 referrals after initial assessment in 2022-23.

Next Steps

• We will continue to take forward the delivery of PREVENT in Scotland, ensuring this is tailored to Scotland’s devolved delivery landscape.

3.3 Religious Observance in Schools

No: 26d

UN Concluding Observation

Repealing legal provisions for compulsory attendance in collective worship and establishing statutory guidance to ensure the right of all children, including children under 16 years of age, to withdraw from religious classes without parental consent.

Relevant section of Scottish Government’s November 2022 Position Statement

• Section 4.1 – Religious Observance in Schools

Scottish Government Position

The Scottish Government is considering its next steps on religious observance in schools to ensure compliance with the UNCRC. The views of children and young people will be important in shaping our considerations on this matter, as well as key stakeholder organisations.

In relation to the current law in Scotland, it should be noted that religious observance is not compulsory. Under current legislation, parents are legally entitled to withdraw their children from religious observance in local authority and grant-aided schools. This is supported by detailed guidance (2017) which encourages schools to discuss the question of opting out of religious observance with both parents and their children. The guidance states that:

“There is no equivalent statutory right to withdraw afforded to children and young people. However schools should include children and young people in any discussions about aspects of their school experience, ensuring their views are taken into account. Doing so is in line with the Children and Young People (Scotland) Act 2014 and is especially relevant as children and young people become older and take more responsibility for their own learning.”

Additionally, the guidance notes that religious observance (RO) should “be sensitive to individual spiritual needs and beliefs, whether these come from a faith/belief or non-faith perspective... It is of central importance that all pupils and staff can participate with integrity in forms of RO without compromise to their personal beliefs.”

Next Steps

• The Scottish Government is considering its next steps on religious observance in schools to ensure compliance with the UNCRC.

3.4 Freedom of Association and Peaceful Assembly

No: 27a

UN Concluding Observation

Strengthen children’s right to freedom of association and peaceful assembly, including by repealing measures in the Police Crime Sentencing and Courts Act 2022 and removing provisions in the Public Order Bill which limit children’s rights to participate in protests;

No: 27b

UN Concluding Observation

Strengthen measures to prevent the use of acoustic devices to disperse public gatherings of children (so-called “mosquito devices”), in line with the Committee’s previous recommendations.

No: 27c

UN Concluding Observation

Ensure that children are not threatened for exercising their right to freedom of association and peaceful assembly, including for their involvement in climate activism.

Relevant section of Scottish Government’s November 2022 Position Statement

• Section 4.3 – Mosquito Anti-Loitering Devices

Scottish Government Position

Right to Freedom of Association and Peaceful Assembly

The Scottish Government has no plans to introduce legislation which replicates the UK Police, Crime, Sentencing and Courts Act 2022 or the Public Order Act 2023 in relation to children’s right to protest.

We support young people to take a healthy and active interest in democracy which includes the right to participate in protests. Their welfare and safety are of paramount importance. The Scottish Government is committed to upholding the important human right to peaceful public assembly and freedom of expression for everyone, including children. We support Police Scotland to facilitate public assemblies and take appropriate and proportionate action to maintain public safety and public order and deal with any antisocial behaviour, disorder or criminality arising from protests. This includes protecting the safety of those participating in protests, including children, the general public and police officers themselves.

Mosquito Anti-Loitering Devices

The Scottish Government has consistently opposed the use of mosquito devices and considers that the Antisocial Behaviour etc. (Scotland) Act 2004 currently provides sufficient measures to help police and local authorities prevent and deal with antisocial behaviour wherever it arises.

As discussed in the Embedding Children’s Rights in Scotland: Position Statement (2022), the Scottish Government continues to discourage the use of these devices and has previously engaged with the public and business sectors in Scotland to make our position clear. We also approached the UK Government and UK Health and Safety Executive in 2021 to encourage them to consider the evidence of the impact of mosquito devices and whether a UK-wide ban should be considered. At the time of writing, the UK Government had no plans to introduce a ban, licence or restrict the use of these devices.

As far as we can determine, there is little use of these devices in Scotland. In 2021, the main public sector bodies (local authorities, Police Scotland, British Transport Police and ScotRail) confirmed that they do not use mosquito devices on their sites and Police Scotland and local authorities support multi-agency partnerships to prevent and tackle antisocial behaviour rather than using these devices.

Next Steps

Freedom of Association and Peaceful Assembly

• The Scottish Government has no plans to introduce legislation which would limit the right of children to participate in protests. We will monitor any problems or difficulties that arise through protest activity in Scotland and work with partners to ensure that the right to protest is protected and that everyone, including children, can freely exercise this right.

Mosquito Anti-Loitering Devices

• There is currently no evidence in Scotland which supports the need to take further action in relation to mosquito devices but we will note any evidence that raises concerns about the use of mosquito devices and consider any appropriate and proportionate action that may be required in response.

3.5 Stop and Search

No: 28a

UN Concluding Observation

Effectively enforce the prohibition of the use of non-statutory stop-and-search checks against children

No: 28b

UN Concluding Observation

Ensure that their statutory use is proportionate and non-discriminatory, including by implementing the best use of stop-and-search scheme, and conducting mandatory training for law enforcement officials.

No: 28c

UN Concluding Observation

Improve the monitoring of the use of stop-and-search checks on children, including through the collection and publication of related data, and investigate all allegations of their disproportionate or discriminatory use on children.

Relevant section of Scottish Government’s November 2022 Position Statement

• Section 4.4 – Stop and Search

Scottish Government Position

Police Scotland carry out stop and searches in accordance with the Code of Practice on the use of Stop and Search, which came into effect in May 2017 and the use of non-statutory (consensual) search ceased. The Code sets out the circumstances in which a search may be carried out, the procedures to be followed, the record to be kept and the right of someone to receive a copy of that record. The Code of Practice is clear that an individual cannot be stopped and searched because of their age, sex, race (including nationality and ethnic background) or religion.

The Code contains specific guidance on searches of children and young people. It sets out that the police must treat the need to safeguard and promote the wellbeing of that child or young person as a primary consideration in deciding whether to proceed with a search and, where that is deemed necessary, to conduct searches in a way that minimises potential distress. Where a constable believes it to be more harmful to a child or young person to carry out a search than not, then the search should not proceed. To help children and young people understand their rights under the Code, a separate Guide, Stop and Search in Scotland: What You need to Know – A Guide for Children and Young People, was published in May 2017.

Monitoring and Oversight of Stop and Search

All searches carried out are subject to governance and review in line with scrutiny arrangements to confirm they comply with the Code of Practice being lawful, necessary, and proportionate. The Police Scotland Stop and Search Mainstreaming and Assurance Group, which includes representation from the Scottish Police Authority (SPA) and the Scottish Government, meets quarterly to ensure the effective monitoring of stop and search practice. The searching of children and young people continues to be a focus of the Group and stop and search data for young people is reviewed on a monthly basis by Police Scotland. The use of stop and search is also monitored within local police divisions and fed into central oversight.

Police Scotland publish detailed data in respect of stop and search activity on a quarterly basis. The most recent data covers the period from April 2022 to March 2023. This publication has allowed for greater confidence in the data and enables more robust and independent scrutiny to be undertaken. Police Scotland are also developing a public facing dashboard which will present the stop and search data already published in a more user friendly and accessible way. This will include the ability to filter the data by a number of factors, including age.

The SPA published a public briefing on Children and Young People’s Contact with the Police in May 2023, which included data on stop and searches in relation to under 18s. The briefing found that the number of searches of under 18s is showing a downward trend since 2019. The paper also highlighted that there were significantly fewer searches of under 18s per 10,000 population in Scotland than England and Wales. From April 2017 to December 2021, there were 46 searches of under 18s per 10,000 population in Scotland compared to 91 in England and Wales. While there are procedural guidelines in place in England and Wales, the Code of Practice applies only to Scotland.

The Independent Advisory Group on Stop and Search conducted two reviews of the Code of Practice following its publication - a six-month review, published in February 2018, and a twelve-month review, published in June 2019. These reports found that few issues were raised around ethnicity and the vast majority of searches and seizures in Scotland involve people who self-define as belonging to a white ethnic group.

Next Steps

• The Code of Practice on Stop and Search and its use is a matter for Police Scotland. The Scottish Government will continue to work closely with Police Scotland, the SPA, and other stakeholders, both directly and through the Stop and Search Mainstreaming and Assurance Group, to monitor progress, review data, raise concerns and provide feedback.

3.6 Use of Strip Search

No: 30a(ii)

UN Concluding Observation

Take legislative measures to explicitly prohibit, without exception, the use of strip searches on children.

Relevant section of Scottish Government’s November 2022 Position Statement

• Section 4.4 – Stop and Search

Scottish Government Position

As set out in the Embedding Children’s Rights in Scotland: Position Statement (2022), the use of strip searching is an operational matter for Police Scotland. Police must ensure that their actions are fully compatible with the young person’s human rights under the UNCRC and have the child’s wellbeing as a primary consideration in deciding whether to proceed. A strip search is undertaken only under circumstances that present concern for the wellbeing of the child or the safety of others, due to concerns over concealed drugs or potentially harmful articles. A strip search does not necessarily constitute the removal of all clothing. The removal of an item of clothing, shoes etc constitutes a form of strip search.

Police Scotland carry out and record all strip searches in police custody in accordance with the Care and Welfare of Persons in Police Custody Standing Operating Procedures. In all cases involving children, a strip search will only take place with the authority of officer of the rank of Inspector or above. To support the child when a strip search is being carried out within police custody, a responsible person should be present when the strip search is carried out. A strip search can take place without a responsible person if the child has specifically requested this, and the responsible adult agrees.

A Code of Practice on carrying out a stop and search outwith police custody contains detailed guidance on the circumstances in which strip and intimate searches can be carried out and specific provisions on searches of children and young people. Police must ensure that where a search is considered necessary, they must be conducted in a way that respects the child or young person’s dignity and privacy and minimises any potential distress.

The Code of Practice also sets out the requirements to be followed by the Police for recording information in relation to all stop and search activity covered by the Code, including strip searches in the community. Police Scotland publish data in respect of stop and search activity in the community quarterly online. Further information on the use of stop and search is included at section 3.5.

3.7 Access to Appropriate Information

No: 29a

UN Concluding Observation

Continue to improve digital inclusion for children in disadvantaged situations, including through accessible and affordable online services and connectivity, while ensuring that public services remain accessible to children who do not use or have access to digital technologies.

No: 29b

UN Concluding Observation

Adopt the Online Safety Bill and ensure that all laws and policies on the digital environment protect the rights, privacy and safety of children in the digital environment and from harmful content and online risks;

No: 29c

UN Concluding Observation

Enhance the digital literacy and skills of children, parents, caregivers and teachers, including by incorporating digital literacy into school curricula.

Relevant section of Scottish Government’s November 2022 Position Statement

• Section 4.2 – Access to Online Services and Connectivity
• Section 5.4 – Online Safety

Progress since November 2022

Digital Inclusion and Literacy

The Connecting Scotland programme, which was established in 2020 in response to the COVID-19 pandemic, provides individuals with a device, connection with unlimited data for two years, as well as training and support. The programme aligns with the Scottish Government’s target of tackling child poverty and supporting children, young parents with families and low-income households is a policy priority.

During Phase 2 of Connecting Scotland, which was launched in autumn 2020, the programme delivered 17,001 devices for families with children to 247 charities and groups who applied for the funding. The programme also provided 4,116 devices to young care leavers and supported 16 charities and networks. In addition, over 20,000 devices were distributed during Phase 3 of the programme, which was launched in summer 2021, alongside the offer of digital skills support. The largest single cohort of users targeted during Phase 3, was people who were digitally excluded and seeking employment.

The evaluation of Phase 2 of the Connecting Scotland Programme (2022) showed that dependent children used Connecting Scotland devices to keep up-to-date with schoolwork and to maintain social connections with their peers online. The evaluation of Phase 3 of the Connecting Scotland programme, published in July 2023, showed that 60% of respondents who were actively searching for jobs benefitted from the digital support they received.

Connecting Scotland has expanded its service model to build on the success and learning of the first three phases, resuming delivery in 2023 with two new delivery projects. The projects focused on delivering kit and connectivity to device library and social housing organisations via grant award. Applications for the projects closed on 27 November 2023, with £204,000 in grant funding awarded to a diverse range of projects working to further digital inclusion across Scotland. These projects allow organisations to expand their capacity through the provision of additional kit and connectivity, supporting them in reaching out to more digitally excluded people across Scotland. Research and evaluation will be set up to monitor how the delivery projects are operating, as well as assessing their impact on users’ connectivity needs.

In the context of the cost-of-living crisis, additional barriers in relation to affordability of Internet Connectivity have arisen, meaning that those in poverty are struggling to access online services, entertainment, education, and employment. Connecting Scotland is in regular contact with Ofcom, the UK’s communications regulator, to provide collated information on social tariffs in Scotland. A new content page has been set up which highlights social tariffs for Scottish consumers to benefit from affordable and sustainable internet packages.

Digital Education Strategy

The Scottish Government is developing a new digital education strategy which will outline the role we believe digital tools and services play in the future of Scottish Education. We continue to work with key partners on development of this strategy to ensure that digital technology remains an important consideration in the delivery of education.

In December 2022, the Scottish Government completed discovery work to establish the current picture of digital devices and infrastructure in schools. Findings from this work continue to be used to support the development of our strategy.

We are working to ensure that all teachers have access to high-quality professional learning to support the delivery of computing in the classroom. This includes computing science conferences run by Education Scotland and monthly “drop-in sessions” for computing science teachers to enable the sharing of best practice. Education Scotland is also providing focused professional learning every school term along with live sessions for learners on Micro:bit and SCRATCH.

We also continue to support the Scottish Teachers Advancing Computing Science (STACS) project, based at the Computing Science Department of Glasgow University. STACS works to support teachers by creating teaching resources and promoting skills and pedagogical development.

Online Safety Act 2023 and Online Safety

The UK Government’s Online Safety Act 2023 establishes a new regulatory regime aimed at ensuring that platforms in scope have systems and processes in place to deal with illegal and harmful content and their associated risk, particularly to children and young people. The Act empowers Ofcom to better regulate internet services and search engines and, in doing so, will make the internet a safer place for users.

The Act extends legislation to Scotland that will make it an offence to communicate encouragement or assistance to someone else to serious self-harm.

While internet safety is a reserved matter, we continue to work with the UK Government to ensure the Act does all it can to keep children safe online. We also continue to work with law enforcement, Ofcom and third sector partners on the implications of this important legislation for Scotland, including responding to relevant Ofcom consultations on the Online Safety Act.

Protecting children online is a key priority for the Scottish Government. This includes both child sexual abuse and sexual exploitation, and our approach to tackling these harms in Scotland reflects the interlinked nature of these issues. The

National Guidance for Child Protection in Scotland, published in 2021 and updated in 2023, provides updated information on child sexual abuse and child sexual exploitation to support local areas in Scotland in developing effective, evidence-based responses. The guidance also provides detailed advice for all practitioners who support victims of sexual exploitation.

We are also continuing to work with our partners through the Police Scotland Multi-Agency Preventing Online Child Sexual Abuse and Exploitation Group to inform our approach to enforcement to keep children safe online.

We also recognise the links to our work developing a Framework to challenge men’s demand for prostitution, which is underpinned by a preventative and holistic approach (and tackling commercial sexual exploitation). Work on the component parts of the Framework is continuing, with more details anticipated in early 2024. In addition, our refreshed Equally Safe Strategy is cognisant of the need to tackle online violence against women and girls, see section 4.4.

Next Steps

Connecting Scotland

• We will continue to work with partners, such as the Scottish Council for Voluntary Organisations (SCVO), through our digital inclusion projects and programmes to ensure that young children, including their parents, teachers, and care givers, have access to digital services and can thrive in a digital world.
• We will continue to seek out opportunities to support cross-cutting workstreams to ensure that young parents have access to digital services.

Digital Education Strategy

• The Scottish Government will continue to work with partners on the development of a digital strategy for education.
• We are also continuing to work to ensure that all teachers have access to high-quality professional learning to support the delivery of computing in the classroom.

Implementation of the Online Safety Act 2023

• We are continuing to work with the UK Government to ensure the Online Safety Act 2023 does all it can to keep children safe online. We are also continuing to work with law enforcement, Ofcom and third sector partners on the implications of this important legislation for Scotland, including responding to relevant Ofcom consultations on the Act.