Consultation on the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024: Statutory Guidance on Part 2 and 3, section 18

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Closes 16 May 2024

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Part 2: Compatibility with the UNCRC requirements, and child rights-respecting practice

The following consultation questions 1-14, relate to the draft statutory guidance on Part 2 of the UNCRC Act. This is particularly relevant to public authorities.

Part 2: Compatibility with the UNCRC requirements, and child rights-respecting practice 

Statutory guidance on Part 2 of the UNCRC (Incorporation) (Scotland) Act 2024 - gov.scot (www.gov.scot)

This guidance is issued by Scottish Ministers on a statutory basis to promote understanding, implementation and operation of Part 2 of the Act. The guidance will be of assistance to anyone who wishes to use it for those purposes, in particular, those bodies who meet the definition of a public authority.

The Scottish Government recognises the vital role that those providing public services play in delivering improved outcomes for children, young people and their communities and that the full realisation of children’s rights requires proactivity on the part of all public services and not only those working directly with children and young people.

All decisions made about actions taken to deliver public services may impact on the rights of children and young people. It is vital for all those undertaking public functions to consider children’s rights in their work. Consideration of children’s rights should be evident across all public service delivery. This guidance aims to provide meaningful support for this purpose to any organisation who is or would be a ‘public authority’ as defined in sections 6(5), (6), (7) and (8) of the Act and those acting under contract or other arrangement

How is the guidance to be used?

This guidance is issued to support public authorities in the implementation and operation of their duties under Part 2. It is intended to promote understanding of Part 2 of the Act and includes information to support public authorities in the implementation and operation of their duties. Public authorities retain discretion on the implementation and operation of their duties under Part 2 and may wish to consider this guidance in that regard.

How was the guidance developed?

This draft guidance was developed in consultation with representative public authorities, including public services, third sector organisations and children’s rights bodies. In addition, feedback from a public consultation with children, young people and their representatives, a range of public authorities, the Scottish Human Rights Commission (SHRC) and the Commissioner for Children and Young People in Scotland (‘The Commissioner’) will inform the final version.

Summary of the contents of Part 2

The content of the guidance consists of the following sections:

  1. An introduction to human rights, children’s rights and the UNCRC Act, including a definition of ‘UNCRC requirements’ as included in the Act
  2. An introduction to Part 2 of UNCRC Act including frequently used terms and remedies now available to children and their representatives to seek redress through the courts if their rights have been (or a proposed action would mean that they would be) infringed
  3. Definitions of key terms in the Act
  4. An explanation of the section 6 duty on public authorities
  5. An introduction to concepts within the UNCRC relevant to the Act and their interaction with  other human rights treaties ratified by the UK
  6. Sources to guide interpretation of the UNCRC
  7. A framework that public authorities may wish to use to review compatibility with UNCRC within their practice
1. I have read the draft statutory guidance on Part 2 of the UNCRC Act
2. Section 3, 'Background and introduction to the UNCRC Act', provides sufficient information on the UNCRC and the background to incorporation.
3. Section 3.4, ‘Meaning of UNCRC requirements’, clearly articulates what is meant by this in relation to the section 6 duty.
4. Section 4.2, ‘Remedies for unlawful acts (sections 7 to 10)’ is useful.
5. Section 4.3.2 ‘Definition of a public authority’ is clear.

4.3.2 Definition of public authority

Statutory guidance on Part 2 of the UNCRC (Incorporation) (Scotland) Act 2024 - gov.scot (www.gov.scot)

"In understanding to whom the duty to act compatibly applies, it is helpful to refer to case law developed under the Human Rights Act (1998) (“HRA”) which contains a similar duty to not act incompatibly with a Convention right. Case law for the HRA distinguishes between “core” public authorities and “hybrid” public authorities. “Core” public authorities are described as “certain bodies that so obviously have the character of a public authority that it is not necessary to mention them”, in other words those that do not need to be defined. Many of these are listed authorities under section 19 of the Act and examples include local authorities, government departments, the police and health authorities. “Hybrid” public authorities are those who carry out a mixture of public and private functions. This may include bodies from the private, voluntary and independent sector.

“Core” public authorities, who carry out functions which are clearly of a public nature (such as social care, housing, health and education which are publicly funded), need to ensure any functions which are within the legislative competence of the Scottish Parliament are compatible with the UNCRC requirements as provided for in section 6(1). These are functions under common law and from legislation originating from the Scottish Parliament. For these authorities there is no need to distinguish between private and public functions as all of their functions are considered to be of a public nature.

In addition, it is important to note that section 6 applies to all “acts” of public authorities which means that it applies not only to specific functions of a public authority but to all acts of public authorities that are within the legislative competence of the Scottish Parliament. There is extensive jurisprudence on the meaning of “act” in the context of the HRA which clarifies that it should be given a “broad and purposive meaning”.

Examples of “acts” which may be covered by section 6(1) include recommendations, a preliminary decision (e.g. proposals made by local authorities which are put before the Government for approval), final decisions, advice (including general advice) and reports.

Bodies that undertake functions of both a public and a private nature will only fall within the scope of the Act in relation to their functions which are of a public nature. Their functions which are of a private nature are excluded from the legal duties of the Act. “Hybrid” public authorities who carry out a mixture of public and private functions will need to assess when and how the duty applies to these areas. For the HRA, this has sometimes meant that the courts have had to determine on a case by case basis which bodies are considered “public authorities” for the purpose of this Act. It has been stated that “[t]here is no single test of universal application” and factors to be considered by the courts include “the extent to which in carrying out the relevant function the body is publicly funded, or is exercising statutory powers, or is taking the place of central government or local authorities, or is providing a public service”. However, it should be noted that section 6(7) of the Act states that “functions are not excluded from being functions of a public nature … solely because they are not publicly funded”. This makes it clear that the source of funding is not a determining factor in deciding whether a function is public or private in nature. Nevertheless, it is likely that case law will play an important role in clarifying whether functions and acts are within or outwith the scope of the Act in relation to hybrid bodies and the private, voluntary and independent (PVI) sector.

The section 6 duty will not apply to bodies that do not have any functions of a public nature or where the nature of the acts are wholly private. This recognises that the obligations under the UNCRC (as with other human rights frameworks) are placed on the State. The Act states under section 6(8) that:

“In relation to a particular act, a person is not a public authority by virtue only of subsection (5)(a)(iii) if the nature of the act is private.”

Therefore, if the nature of an act is purely private, the duty to act compatibly with the UNCRC requirements does not apply. The Act does contain some subsections (i.e. section 6 (6 and 7)), that make it clear that the nature of the function performed rather than the characteristics of the body performing it are to be the primary consideration."

The above text is an extract, please view the full section here: https://www.gov.scot/isbn/9781835219218 

6. Section 4.3.1 ‘Definition of functions of a public nature’ is clear.

4.3.1 Definition of functions of a public nature

"Public functions are generally understood to be functions performed for the collective benefit of the general public. In relation to Human Rights and Equality Duties, the term ‘public function’ “refers to things that a public body or someone acting on its behalf does when delivering a public service or carrying out activities that are public in their nature. An activity is public in nature if it is something that a private individual or organisation would not normally do”, for example providing public health care or government policy making.

Private functions are generally understood to be acts that are conducted by individuals for their own interests or profits and are therefore not under government control. While there is always clearly an obligation to adhere to criminal law, the obligations are somewhat less clear for administrative, private and human rights law."

7. Section 4.4, ‘Explanation of the duties on public authorities in Part 2, section 6’ clearly explains the nature of the section 6 duty on public authorities, including clearly articulating that the section 6 duty applies only when a public authority is carrying out devolved functions conferred under Acts of the Scottish Parliament or common law powers.
8. Annexes A.1 – A.5, ‘Clarification of conceptual aspects of the UNCRC’ are clear.
9. Annexes B.1 – B.4 ‘Sources to guide interpretation’ are useful.
10. Annex C, ‘Framework for Reviewing Compatibility (s.6 duty)’ is presented in an accessible manner, e.g. the content, style, and length make this a user-friendly and practical resource.
11. I clearly understand how to use the Compatibility Review Framework.
12. Overall, the guidance is presented in an accessible manner, e.g. the content, style, and length make this a user-friendly and practical resource.
13. Overall, the guidance supports an improved understanding and ability to fulfil the duties under Part 2 of the Act.
14. Are there any areas where you think the Part 2 guidance could be improved? Please cite specific parts of the guidance if relevant.