Centre for Research in Education Inclusion and Diversity (CREID)

A force for change

Scotland’s new children’s commissioner has in his sights major legal changes on equal protection, the age of criminal responsibility and UNCRC (United Nations Convention on the Rights of the Child) incorporation. How will the Scottish Government respond? -- By Jennifer Drummond

Jennifer Drummond

Very few people would say that they are in their dream job, but Bruce Adamson, Children and Young People Commissioner for Scotland, says exactly that. Taking office earlier this year, the human rights lawyer is, in his own words, doing ‘the best job in Scotland’.

The New Zealand native has an impressive CV. Working as the legal advisor to Scotland’s first Children’s Commissioner, Kathleen Marshall, in 2005, he went on to hold key positions with the Scottish Human Rights Commission, the United Nations, the Council of Europe and the European Union. He was the UN representative responsible for coordinating the work of human rights commissions around the world. He has guided emerging democracies in Eastern Europe on their human rights agenda, and has worked with war-torn countries to ensure obligations to uphold basic children’s rights are being met. Closer to home, he chaired the board of the Child Law Centre, and spent 13 years as a member of the children’s panel.

These varied experiences all have one thing in common – being an advocate for those who often don’t have a voice – and culminated in Bruce starting work as the new Commissioner in May. In terms of children’s rights, it is one of the most significant roles in Scotland, with the power to hold Scottish lawmakers to account. This gives the office a vast remit and Bruce and his team are still in the process of identifying both short and long-term priorities. But he already has strong opinions on where he can make immediate improvements.

‘My biggest priority at the moment is making sure the government and parliament, and others, properly listen to children and young people. I don’t think they do that very well at the moment,’ he says.

He is also a strong advocate of the human rights of parents, and is keen to highlight the role parents and carers play in advocating for the rights of their children. The rights of parents and the rights of children shouldn’t be seen in opposition. ‘A lot of the time when we talk about children’s rights, we talk about it in conflict with parent’s rights, and I want to change that. A lot of what we talk about in terms of children’s rights is access to education, to healthcare, to places to play, and to be kept safe. Parents agree with all of that, and are usually the biggest champions.’

Changing hearts, minds – and the law

But it’s not just about changing rhetoric. The Commissioner is clear about his intention to reform Scottish law to better reflect and support the rights of children and young people. There are three key areas he feels particularly passionate about: incorporation of the United Nations Convention on the Rights of the Child (UNCRC), equal protection, and the age of criminal responsibility.

Children’s rights are making their way up the political agenda. Not only has the Scottish Government actively sought children and young people’s views on key issues of late, but members of the Scottish Cabinet also invited a group of children and young people to Bute House in March this year. The meeting, which the Government says will now take place annually, offered a chance to express, in their own words, issues relevant to their lives today. They raised issues, and agreed action, particularly around teacher education, children and young people’s rights, mental health and Scotland’s relationship with Europe.

The Commissioner believes this indicates some real progress. However, he warns that despite vocally and publicly displaying support for the advancement of children and young people’s rights, in the overall view the government is still falling short.

‘There are Scottish ministers whose hearts are in the rights place, who really do want to do the right thing, but they are failing in terms of turning that into practice,’ he says. ‘Things like not incorporating the rights of the child. They have voted down amendments from opposition parties that would lead to it, while at the same time saying they want to. That’s a really stark example of making public statements but then actively fighting against the action to do it.’

Numerous organisations across the country have called for the government to incorporate the UNCRC, enshrining in Scots law a number of fundamental civil, social, political, economic and cultural rights for every child. It is continually referred to in the UK’s Periodic Review (the most recent of which was published by the United Nations in September 2017) as an area in which we could do better.

The Commissioner dismisses opposition to incorporation on the grounds of accountability and practical application. ‘I don’t see any barriers whatsoever to incorporation,’ he says. ‘The constitutional set-up in Scotland can be confusing, but that doesn’t stop Scotland incorporating the UNCRC for devolved purposes. There’s no barrier to doing that now.’

But what would this mean in practice? He warns that incorporation of the UNCRC shouldn’t be seen as a silver bullet to addressing inequality issues within Scottish society. Instead, it is about realising children’s rights in a progressive way, and understanding that incorporation is the gold standard we have committed to.

‘It doesn’t mean that everyone gets the exact education or healthcare they want. It doesn’t mean that waiting lists suddenly disappear or that we magic up additional schools, teachers or social workers,’ he explains. ‘What it requires the state to do is demonstrate that it is spending money appropriately in a way that takes children’s rights into account. It makes people more accountable.’ 

The Commissioner cites other countries, such as Belgium and Norway, as examples of where incorporating the UNCRC has changed decision-making, public perception and the way we think about children’s rights. International evidence suggests better outcomes and more efficient spending in terms of early intervention as a consequence of full incorporation.

‘The advantages are huge, not just for children and young people, but for all of us. By incorporating the UNCRC it actually makes things work better, leading to a better society and better communities.’

No regrets

It is not just on UNCRC incorporation where the Commissioner sees Scotland lagging behind our international counterparts. The issue of equal protection (smacking) has consistently been raised in the UN’s Treaty Bodies and its Universal Periodic Review of Scotland. Previous changes to the law on protection have only come about as a result of legal challenges taken to the European Court of Human Rights in Strasbourg. In essence, change has happened because the Government have been forced to, not as a proactive measure in recognition of children’s rights.

On leaving office, previous Commissioner Tam Baillie said the failure to secure legislative change around equal protection from assault was one of his biggest regrets. Mr Adamson intends to take a much harder line.

‘It is my view that the Scottish Government is in breach of its international obligations,’ he says, with the confidence of someone who knows he has the legal knowledge and clout to successfully argue his point. ‘The UN, Council of Europe and EU have all repeatedly condemned the UK’s position and Scotland’s position. This is something that needs to change now.’

Since taking office the new Commissioner has been proactive about ensuring this is high on the agenda of lawmakers: they know he won’t allow them to be passive on such an important issue. He has already met with Scottish ministers and Scottish Government lawyers to set out his legal arguments, and has appealed for the support of the legal community by setting out his position in a recent article for the journal of the Law Society of Scotland.

‘This is a breach of international law and the government’s position is in breach of international law,’ he says. He believes the Scottish Government could find themselves on the wrong side of a legal challenge.

‘The idea that the assault of a child for the purpose of physical punishment could in any way be justified as necessary for any democratic society is nonsensical. The idea that violence should be used to change behaviour goes against the basic principles of human dignity. The idea that just because the assault against a child is classed as less serious assault and allows it to be justified, just isn’t tenable. The government has to change the law right now.’ For anyone who might doubt his determination and conviction on this point, he adds: ‘My position won’t be one of regret. My position is this needs to change or legal action will be taken.’

The Commissioner also calls the government out on their ‘wait and see’ approach to Scottish Green MSP John Finnie’s proposals for a Member’s Bill on the issue, concerned at their refusal to change position despite a solid legal argument and persuasive international evidence. The results of Finnie’s consultation are due out shortly.

Age of responsibility

Scotland has one of the lowest ages of criminal responsibility in the world: at eight it is four years lower than the UN’s absolute minimum of 12. Set over a decade ago, this was acknowledged as the starting point for moving upwards. We have frequently been criticised about the current legislative status quo. It is a position the Commissioner himself calls ‘incomprehensible’ recalling that although the Scottish Government has committed to shift the age threshold from eight to 12, this is still considered by the United Nations to be too low.

The Commissioner also points out a glaring disparity between the ages at which young people are expected to take responsibility for their actions and when they are given the opportunity to participate in democracy. Children as young as eight are expected to understand the complexities of the legal system, yet young people are not considered responsible enough to vote until the age of 18, or 16 in Scottish elections.

‘So at age eight, we think in Scotland that children have enough understanding of their actions and the consequences of their actions that we should criminalise them. But then we say it is not until they are 18 that someone can have the ability to choose someone to represent them in Parliament. I think that is absolutely ridiculous.’

‘To be able to understand that my action is in breach of a law that has been set and that there are legal consequences to me breaking this rule, as opposed to any other rule, is actually quite a complicated thing to understand. I don’t think there are any eight year olds that understand the criminal law in that way.

‘Choosing someone that you agree with and believe represents you is, in my mind, a much simpler thing to understand. I think you can do that at a very young age. You can identify if you agree, or don’t agree, with what someone is saying. So, when you contrast voting age and criminal responsibility that’s really stark.’

In combination, resistance to UNCRC incorporation, the failure to enshrine in law equal protection from assault for children, and an internationally condemned position on the age of criminal responsibility might paint a depressing picture of children’s rights in Scotland in 2017. But the Commissioner disagrees, maintaining ‘we should always be optimistic.’ And, he has a plan.

In June he announced his support for a national action plan on children’s rights. The intention would be to build on the body of international evidence, routinely gathered and reported since the 1993 Vienna world conference on human rights, which called on all countries to identify how they are delivering on rights-related promises. Conclusions drawn from the results over the years have identified the need to involve civil society and children and young people. But, crucially, the consensus is that for any plan to be effective it must have an emphasis on delivering, not rhetoric, and be owned, supported and actively driven forward by the government. Bruce believes this approach will be the key to the success of such a plan in Scotland.

‘It has to be focused on it being a government action plan, a government delivery plan, on how they are going to demonstrate their commitment to children’s rights by setting out how they are going to deliver on those promises,’ he explains. He criticises the reporting duties introduced with the Children and Young People (Scotland) Act 2014 as being ‘really not good enough’, suggesting an action plan, specifically concerned with the rights of children and young people, would immediately bring the type of accountability a simple duty does not. He is also clear that such a plan doesn’t mean delivering right away but outlining how the goals will be achieved, including what financial investment is needed, what resources are required, and who will be responsible.

‘It needs to be action-focused with very clear time frames, and a very clear process for monitoring and evaluation. It needs budget assigned to it. It needs to have responsibility attached at the highest levels of government and civil service. It needs to be fully embraced across government, with high level buy-in and commitment. It needs to link to the government’s work and flow through all areas of government.

‘It can’t be something that’s seen as a wish list. It needs to be the government’s plan to deliver on promises it has already made. This isn’t new promises, this isn’t new ideas, but promises that were made through the international law, assessments that have been made from the monitoring and reporting process and treaties that tell us what to do. The government’s response needs to set out very clearly what they are going to do to deliver on that.’

With the Scottish and UK government duty bound to report on rights-based activity at regular interval, an action plan, he suggests, is simply ‘a smarter way of doing things’.

Over to you

Although Mr Adamson is focused on these immediate priorities, the longer-term agenda of the office will be put in the hands of children and young people. Katie, aged 15, and Nina, 13, have also attended the interview with me. As members of the Children’s and Young People’s Advisory Group recently established by Children in Scotland, they and their peers identified mental health and gender inequality as two particularly pressing topics.  They ask the Commissioner how he plans to address these.

There are lots of really important issues – poverty, mental health, care experience, disability or other things – and I need to make those choices, but I am not going to make those choices until I’ve spoken to a lot of children and young people about what they think I should be doing,’ he says.

The Commissioner draws attention to the consultation work the office is undertaking, with the staff team currently developing a plan which aims to gather views from children across in Scotland. This body of work will build on participation and engagement activity already completed while seeking the fresh input of children and young people from the Highlands to the Borders.

One of the things I am absolutely committed to is getting children and young people right into the heart of my work – how I set the budget, how I run my office, how I use my time,’ he explains. ‘I want children and young people to really help me make some of those difficult decisions about how I prioritise things.’

Speaking of difficult decisions, Nina and Katie challenge the Commissioner on what he thinks is the most important right for children and young people. But this, he suggests, is a trick question.

‘There’s no most important right. A key thing to realise about rights is that they are interdependent and interrelated’, he reflects, offering up an example. ‘The right to food, and social security affect your right to education – if you’ve not got a full tummy, and you are living in a damp house and you’ve not really got somewhere to sleep, that’s going to impact on your right to education. In terms of all rights relying on other rights, so the key value in terms of looking at human rights is looking at them interconnected. You can’t look at one right without thinking how it is going to affect the other ones.’

Before we part ways, we ask if the Commissioner has any advice for the young people in attendance.

Don’t be forced to act like mini adults in order to fit in,’ he says. ‘Demand your right to be considered as children, demand all of your rights. Engage with learning about your rights so that you see their value and really use them to their full extent.’

But in order to do this, he warns, the adult world needs to change. Adults must ensure we know and respect the rights of children and young people in our lives. We need the systems, structures and processes to understand and reflect everyone’s voices – not just the voices of the adult population. Decision makers need to respect the rights of all and legal systems and structures need to protect our children. Elected officials need to address the democratic deficit, remembering that they are representing all of those in their constituency, not just those who are old enough to vote. We, as adults, need to ensure children know their rights and utilise them to their full potential.

Bruce Adamson is a man with strong opinions and beliefs. He oozes drive and determination, and a compassion that comes with dedicating his whole working life to the advancement of human rights. He is also a man who practices what he preaches. When he tells you he has the best job in Scotland, you’ll believe him.

The Commissioner on … Brexit

‘It is important to remember that many of the rights structures that we talk about aren’t from the EU – the Convention on the Rights of the Child is a UN document, the European Convention on Human Rights is a European Council document and we are still going to be part of that – they won’t be affected.’

‘In order for Scotland to properly live up to its commitment to children and young people, it’s not about the EU, it’s about the decisions that are made here about how we embed children’s rights into our decision making and our service delivery. That’s done through incorporation of the Convention of the Rights of the Child, and a national action plan on children’s rights. Those things are more important, in terms of going forward, than Brexit is to me.’

‘The EU is powerful in requiring things from those who want to trade with them and that hasn’t been discussed very much. It can be a powerful motivator for change. One of the things I want to look at is how the EU can be a strong ally for us in terms of holding the government to account. We spend a lot of our time thinking about what our side of the negotiations should be whereas actually what we need to be thinking about is talking to our European partners about what they should be requiring from our government.’

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Note:

This interview was carried out by Jennifer Drummond with Nina (13) and Katie (15) of the Children in Scotland children and young people advisory group.

We would like to thank Children in Scotland Magazine for granting us permission to reproduce this interview, which first appeared in Issue 182 October-November 2017.  Publication date for the issue was 19 September. We’d also like to thank the Children and Young People Commissioner for Scotland, Bruce Adamson, and the Office of the Commissioner for their permission to reproduce this piece.

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Contact details for Children in Scotland Magazine:

Jennifer Drummond, Editor - jdrummond@childreninscotland.org.uk

Website - https://childreninscotland.org.uk/our-work/magazine/