Part 3: Children’s Rights Scheme, Child Rights and Wellbeing Impact Assessments and Reporting Duties
59.Part 3 contains a range of provisions aimed at promoting transparency in relation to compliance with public authorities’ compatibility duty under section 6(1) and their efforts to secure better or further effect of children’s rights.
Sections 14 and 15: Children’s Rights Scheme
60.Section 14 requires the Scottish Ministers to make a scheme, to be known as the Children’s Rights Scheme (“
61.The arrangements that may be set out in the Scheme are wide ranging and may deal with both strategic and practical matters. Subsection (3) sets out some material that the Scheme must include and the outcomes that are to be achieved, but this list is not exhaustive of what the Scheme may include.
62.Once up and running, the Scheme is to be reviewed on an annual basis with a report on the operation of the Scheme being published following each review (section 16, see paragraphs 69 to 73 below). However, the first Scheme will specify the date by which the first report is due in order to enable the annual reporting cycle to be established. The first Scheme may also contain any specific actions that the Scottish Ministers are to take in respect of matters relating to the Scheme in respect of the period from the first Scheme being made until the first report on its operation is published. This will differ from the core content of the Scheme which will tend to cover ongoing processes or frameworks as opposed to specific actions that are to be taken in the coming year. For example, the Scheme may set out the procedure to be followed when preparing a child rights and wellbeing impact assessment, while the actions may indicate that the Scottish Ministers intend to carry out such an assessment in relation to a particular piece of legislation or strategic decision.
63.Section 15 sets out the procedure that the Scottish Ministers must follow to prepare and make the Scheme and, once it has been made, to amend or replace it. For the purposes of this section, the draft Scheme, the proposed amendment or draft replacement Scheme is referred to as “
64.The procedure may be summarised as comprising the following steps.
Step 1 – preparation
65.The Scottish Ministers must prepare the proposal having regard to the documents listed in subsection (2). They may also have regard to any international law or comparative law and any other document or matter they consider relevant. This will result in a draft of the proposal for publication and consultation.
Step 2 – publication and consultation
66.Once the proposal has been prepared, the Scottish Ministers must publish it and consult the people listed in subsection (3). Following that consultation, subsection (4) confirms that they may make changes to the proposal if they consider it appropriate. This confirms that the proposal may be refined in light of the consultation responses.
Step 3 – laying before Parliament, making and publication
67.Once at least 28 days have passed since the proposal was published under subsection (3), the Scottish Ministers may lay the proposal before the Scottish Parliament, at which point it is likely to be debated by the Parliament. It is only once the proposal has been laid that the Scottish Ministers may make the Scheme.
68.Once the Scheme has been made (or amended or replaced), the Scottish Ministers must publish it in such manner as they consider appropriate.
Section 16: Reviewing and reporting on the Scheme
69.Section 16 provides that the Scottish Ministers must review and report on the operation of the Scheme on an annual basis.
70.Each report is required to summarise the actions that the Scottish Ministers have taken to ensure that they have complied with the duty under section 6(1) (whether or not that action is done under arrangements set out in the Scheme) and to secure better or further effect of the rights of children. The report must also include a statement as to whether the Scottish Ministers will be amending or replacing the Scheme and any other specific actions that they might be taking in the coming year. The report may also include other matters that relate to the rights or wellbeing of children. For example, this may include action that the Scottish Ministers are taking in respect of any aspect of the UNCRC which has not been incorporated under the Act, so far as that action can be taken within devolved competence.
71.Subsection (2) lists things that, if they occur in the reporting period, must be taken into account during the review as these are significant events that are likely to require either changes to be made to the Scheme or specific actions to be taken in the coming year. The Scottish Ministers may also take into account international law and comparative law and any other document or matter they consider relevant in reviewing and reporting on the Scheme.
72.In deciding what actions for the coming year are to be included in the report, the Scottish Ministers must consult the people listed in subsection (5), that is: children, the Commissioner for Children and Young People, the Scottish Commission for Human Rights and anyone else that the Scottish Ministers consider appropriate. This latter element will allow for a wide range of civil society to contribute to the discussion.
73.Reports under the section are to be published and laid before the Scottish Parliament. The Scottish Ministers must also prepare and publish a version of the report for children.
Section 17: Child rights and wellbeing impact assessments
74.Section 17 requires the Scottish Ministers to carry out, and then publish, a child rights and wellbeing impact assessment in respect of provisions of primary and secondary legislation and decisions of a strategic nature that relate to the rights and wellbeing of children (as required by, and in accordance with, the arrangements set out in the Scheme). The purpose of such an impact assessment is to consider the likely effects of the provision or decision on children’s rights and wellbeing and so inform the process of making the legislation or the decision. The Scottish Government has been preparing, and publishing, such impact assessments on a non-statutory basis since June 2015.
75.In relation to secondary legislation, the duty imposed by this section covers subordinate legislation made under both Acts of the Scottish Parliament and Acts of the UK Parliament, so long as it is a Scottish statutory instrument made by the Scottish Ministers (other than commencement orders or regulations). Acts of Sederunt and other court rules, statutory codes of practice, directions and guidance are not included here.
76.The requirement of the Scottish Ministers to carry out an impact assessment in respect of decisions of a strategic nature (subsection (3)) is intended to capture major policy decisions taken in relation to children’s rights and wellbeing. The arrangements for carrying out, and publishing, such impact assessments are to be made in accordance with requirements set out in the Scheme.
77.Subsection (4) requires the Scottish Ministers to carry out and publish a child rights and wellbeing impact assessment in respect of:
decisions to restrict school-age children’s physical attendance at their usual school for reasons related to the SARS-Cov-2 virus (the Covid 19 pandemic was ongoing at the time this provision was included in the Bill for the Act), and
any standards that education authorities have to apply when making any decision about temporarily stopping, or limiting, school-age children’s access to their usual schools (whether they are making those decisions for reasons related to coronavirus or not).
78.The word “school” is defined for the purposes of subsection (4) by reference to the definition in the Education (Scotland) Act 1980 and so covers primary and secondary schools, special schools and nurseries.
Section 18: Reporting duty of listed authorities
79.Section 18 of the Act replaces the duty in section 2 of the Children and Young People (Scotland) Act 2014 (“
Section 19: Listed authorities
80.The list of authorities in section 19 includes all of the authorities listed in schedule 1 of the 2014 Act (plus the Scottish Courts and Tribunals Service). The Scottish Ministers may amend this list by regulations (which are subject to the affirmative procedure). Only bodies which are public authorities may be added to the list (for the meaning of public authority, see paragraph 35 above and sections 6(5) and (8) and 42 of the Act).
81.The Scottish Ministers must consult a public authority (or where appropriate, public authorities meeting a particular description) before the authority is (or authorities are) added to, or removed from, the list.
Section 20: Guidance on section 18
82.Section 20 requires the Scottish Ministers to issue guidance about how the authorities listed in section 19 are to carry out the reporting functions conferred on them by section 18. Before issuing guidance under section 20 for the first time, or issuing any revised guidance, the Scottish Ministers must consult children, the Commissioner for Children and Young People in Scotland, the Scottish Commission for Human Rights and such other persons as they consider appropriate.
Section 21: Reporting duty of the Scottish Parliament
83.Section 21 requires the Scottish Parliamentary Corporate Body (which provides the property, services and staff needed to run the Scottish Parliament) to publish an annual report on what the Scottish Parliament has done, and will do, to secure better or further effect of the rights of children. Neither the Scottish Parliament nor persons carrying out functions in connection with proceedings in the Parliament are public authorities within the meaning of section 6 and so are not subject to the duty imposed by section 6(1). As a consequence, reports under section 21 (in contrast to reports under sections 16 and 18) will not include information on what has been done to comply with the duty under section 6(1). A version of the report for children must also be produced.
Section 22: Consequential amendments of the Children and Young People (Scotland) Act 2014
84.Section 22 repeals Part 1 and schedule 1 of the 2014 Act. Section 1 of the 2014 Act has been replaced by the reporting duties included in section 16 and section 2 (and schedule 1) of the 2014 Act has been replaced by sections 18 and 19.
