Rights questions and answers

Q:
What is special category data?
A:

Special category data is particularly sensitive personal information. Because it’s more open to misuse than other personal information, there are extra protections around it.

It includes information about someone’s:

  • Race or ethnic origin
  • Political opinions
  • Religious or philosophical beliefs
  • Trade union membership
  • Genetic data
  • Biometric data (when used to identify someone)
  • Health
  • Sex life
  • Sexual orientation
Q:
What is personal information?
A:

Your personal information is any information that can be identified as being about you.

For example, imagine we sent out a form that asked you to tell us your name, which school you went to and your opinion about something.

There probably isn’t anyone else at your school who has the same name as you, so we’d be able to work out that you personally had given us that opinion.

That would make your name and the school you went to personal information, because we could use it to identify you. It also means the opinion you put down on the form is your personal information. 

Some personal information is called special category data, which has extra protections because it’s more sensitive than other personal information.

A:

Special category data is particularly sensitive personal information. Because it’s more open to misuse than other personal information, there are extra protections around it.

It includes information about someone’s:

  • Race or ethnic origin
  • Political opinions
  • Religious or philosophical beliefs
  • Trade union membership
  • Genetic data
  • Biometric data (when used to identify someone)
  • Health
  • Sex life
  • Sexual orientation

Sometimes we will need special category data to help us resolve issues that affect the rights of individual or groups of children and young people in Scotland.

We also ask people to share some of this information with us to help us meet our equalities duties.

Q:
How should governments best respect children’s human rights?
A:

What governments should do to respect human rights are set out in the General Measures of Implementation of the UN Convention on the Rights of the Child (UNCRC). These say that:

  • Governments need to do everything in their power to respect children’s rights. They should makes sure that they provide the most money they can to make that happen.
  • Governments should make sure that children and young people know what their rights are.
  • Governments should help adults understand how to respect these rights.
  • When governments are reporting back the the United Nations about what they have done to respect children’s human rights, they should make sure that these reports are available to everyone, including children and young people.
Q:
How can Children’s Commissioners best protect children’s human rights?
A:

In their General Comment 2, the UN Committee on the Rights of the Child explains how people like Children and Young People’s Commissioners can best protect children’s human rights:

  • help children, young people and adults understand children’s human rights.
  • Make sure children and young people know how to contact them.
  • Listen to all children and young people’s views and make sure others do to.
  • Involve children and young people in their day to day work.
  • Work closely with children and young people’s organisations.
  • Be able to investigate where children’s human rights are not being respected.
  • Report back to the United Nations Committee on the Rights of the Child on how their country’s government is respecting children’s human rights.

The Committee also says that like other national human rights institutions, Commissioners should be independent of government.

Q:
How can we respect the human rights of very young children?
A:

All children have rights, and that includes babies and very young children. 

The United Nations Convention on the Rights of the Child (UNCRC) expresses these rights within the framework of children’s lives and experiences.  The rights in the UNCRC are linked together and support each other – so supporting one right, like the right to participate in play, promotes other rights including the right to be heard, to free expression, to development and to education.

Long before young children can understand the concept of children’s rights, they can develop a sense of their own agency.  Babies and very young children can develop this through relationships with parents and carers, and through their surroundings and environment.  Their experience of these early relationships will influence their sense of self, how they view others and how they respond to their environment.

Babies and very young children need to be supported by the adults that care for them to make their own decisions and to be listened to. They need to feel that their ideas, thoughts and decisions are respected. 

They are finding out about their rights through how others treat them.  They are learning about expressing themselves, their interdependence with others, how valued they are.  They are also learning about sharing, making choices and their place in the world.

Early childhood is a critical period for the realisation of rights and good early years experiences increase the chances of children being able to realise their rights through childhood. 

Q:
What is the Court of Session?
A:

The Court of Session is the highest civil court in Scotland.

What this means

When a judge makes a decision in a civil court it can be appealed in a civil court that has more authority, who can decide the judge’s decision was wrong. But then their decision can also be appealed in a civil court with more authority than that.

The highest civil court is the one with the most authority of all. Once they make a decision, it can only be appealed to the UK Supreme Court, and only in some circumstances.

Q:
What is strategic litigation?
A:

There are times when a case in a court of law can impact more than just the people directly involved in it. The court’s decision may affect other children and young people’s rights by establishing an important point of law or principle. That means that other cases might use this point of law or principle in the future.

When a case like this comes up, the Commissioner may ask the court’s permission to intervene— become involved. When they do this, the Commissioner doesn’t take sides or represent children directly. Instead, they bring issues about children’s rights to the court’s attention to help the judge make a good decision. Doing this is a way of doing strategic litigation.

Q:
What does it mean to enjoy your rights?
A:

When we say children and young people should enjoy their rights, that doesn’t just mean they should take pleasure from them. In this context someone enjoys their rights when they fully possess and benefit from them— so they’re actually put into practice in their lives.

Q:
How does the law protect the Commissioner’s independence?
A:

The Commissioner for Children and Young People (Scotland) Act makes it so the Commissioner is independent of government:

  • the Commissioner is nominated by the whole Scottish Parliament, and appointed by the Queen,
  • the Commissioner can’t be removed from their post without a two-thirds majority vote in the Scottish Parliament.

The Commissioner is accountable to the Scottish Parliament and the people of Scotland through the Scottish Parliamentary Corporate Body (SPCB.) This is a group of MSPs from several political parties who are elected to the Scottish Parliament, not just the parties who are in power.

Q:
What does the law say the Commissioner’s functions are?
A:

Scots law sets out the Commissioner’s functions— the things that he and his office must do.

Protecting and promoting rights

The Commissioner’s main function is to promote and protect the rights of children and young people in Scotland. That includes:

  • everyone in Scotland under 18, and
  • everyone in Scotland under 21 who’s care experienced.

Protecting and promoting rights must involve:

Promoting awareness and understanding

The Commissioner has to tell people in Scotland about the rights children and young people have and help them understand what they mean in practice.

Reviewing law, policy and practice

The Commissioner has to look at what powerful people in Scotland do and the laws they pass, and challenge them when they don’t respect children and young people’s rights.

Promoting best practice

The Commissioner has to tell people who work with and for children and young people how to get better at respecting human rights.

Research

The Commissioner should research issues around children and young people’s human rights and get others to carry out research around this. He should tell people what the research finds.

Investigation

The law gives the Commissioner a special power to investigate some issues affecting children’s human rights. There are limits on when this power of investigation can be used.

Reporting to Parliament

The Commissioner has to report to the Scottish Parliament so they know what he’s doing in his job.

What does the law say the Commissioner has to do when carrying out their functions?

Have regard to the UNCRC

The Commissioner must have regard to the UN Convention on the Rights of the Child, especially around:

Equal opportunities

The Commissioner must encourage equal opportunities and the observance of equal opportunity requirements.

Involving children and young people

The Commissioner must encourage children and young people to be involved in his work. Children and young people should know:

  • what the Commissioner does,
  • how they can talk to the Commissioner, and
  • how the Commissioner will respond to them.

The Commissioner must consult children and young people on the work they plan to do, and must consult organisations who work with children and young people. When they do this, they must pay special attention to groups of children and young people who have no other good way to make their views known.

The Commissioner also has to have a strategy around involving children and young people.

Q:
What laws give the Commissioner power?
A:

The Commissioner’s powers are set out in the Commissioner for Children and Young People (Scotland) Act 2003, as modified by the Children and Young People (Scotland) Act 2014.

Before the Children and Young People (Scotland) Act came into force, the Commissioner could only use their power of investigation to investigate cases involving the human rights of groups of children and young people. The Act changed this to allow the Commissioner to investigate cases affecting the human rights of an individual child or young person.

Q:
What’s the history of the Commissioner’s office?
A:

Scotland’s first Children and Young People’s Commissioner began work in 2004 after many organisations told the Scottish Government that children and young people should have a new voice to stand up for your rights.

The first Commissioner was called Kathleen Marshall. She spoke and listened to many children and young people, and they helped her decide what the best way was to promote and protect their rights. During the five years she was Commissioner, Kathleen and her team worked hard and accomplished a lot for the children and young people of Scotland.

In 2008, Kathleen’s term as Commissioner ended. The second Commissioner – Tam Baillie – started work in 2009. Tam spent his eight years as Commissioner listening to children and young people and acting on what they said, before he was succeeded by current Commissioner Bruce Adamson in May 2017.

Q:
What is a corporate parent?
A:

The Children and Young People’s Commissioner Scotland is one of many organisations and individuals who are corporate parents.

A corporate parent is the name given to an organisation or person who has special responsibilities to care experienced children and young people. This may include:

  • those in residential care,
  • those in foster care,
  • those in kinship care, who live with a family member other than a parent, and
  • those who are looked after at home.

In simple terms, a corporate parent is intended to carry out many of the roles a loving parent should. While they may not be able to provide everything a parent can, but they should still be able to provide the children and young people they’re responsible for with the best possible support and care.

Corporate parent responsibilities are intended to encourage people and organisations to do as much as they can towards improving the lives of care experienced and looked after children, so that they:

  • feel in control of their lives, and
  • are able to overcome the barriers they face

Part 9 of the Children and Young People (Scotland) Act 2014 puts the concept of corporate parenting into Scots law. It makes it so:

  • there are certain things corporate parents have to do by law for the children and young people they’re responsible for,
  • corporate parents have to report to Scottish Ministers on how they’re carrying out their responsibilities.

View a complete list of corporate parents in Scotland.

How a corporate parent’s performance is reviewed

Corporate parents must report to Scottish Ministers on how they’re carrying out their responsibilities, and must follow the guidance that Ministers issue on how to carry out their duties. Ministers have to report every 3 years on how well corporate parenting is working in Scotland.

Q:
What is ENOC, the European Network of Ombudspersons for Children?
A:

ENOC is a network which includes Children’s Commissioners and Children’s Ombudspersons, who all promote and protect children’s rights as laid out in the UNCRC. There are representatives from 34 member countries who come together to share information and strategies.

As a member of the Network we take part in an annual programme that includes seminars, an annual conference, position papers and participation.

Visit ENOC’s website.
Q:
How are international agreements on human rights created?
A:

International human rights treaties and agreements, such as the UNCRC, are developed through a process of negotiation among Member States of the UN. Individual States then decide for themselves whether to be legally bound by the treaty— to sign and ratify it.

When a state like the UK signs and ratifies an international treaty – as it has done with the UNCRC – then it’s pledged to make sure its domestic laws and policies comply with it.

A:

The domestic laws of a country are laws that can be upheld in its courts.

Scots law is the kind of domestic law that’s enforced in Scotland’s courts.

If someone wasn’t keeping promises they’d made under an Act of the Scottish Parliament, or an Act of the UK Parliament that applies to Scotland, they’d be breaking domestic law, and so could be taken to a Scottish court.

If they weren’t keeping promises made under international law this couldn’t happen, unless those promises had also been written into domestic law.

Q:
How do we know if Scotland and the UK keep their human rights promises?
A:

We can find out if Scotland and the UK are keeping their human rights promises by:

  • asking young people who live here about their lives and any challenges they face,
  • asking decision-makers like the Government and local councils what work they are doing and laws they are making to protect and promote children’s human rights,
  • asking organisations and researchers who know a lot about children and young people to tell us if they think Scotland isn’t keeping its human rights promises.
Q:
What can I do if my human rights are violated?
A:

If your human rights are violated you can try and find a solution via the justice system in Scotland. Your rights are protected under laws including the Human Rights Act. The words of the European Convention on Human Rights (ECHR) are incorporated into that Act of law. Find out more here.

If that doesn’t work, you have the option to take your case to the European Court of Human Rights or United Nations to try and find a solution.

A:

Young people between the ages of 11 and 25 can get free, confidential advice on legal issues, 24 hours a day, from the Young Scot Law Line (tel. 0808 801 0801).

The Scottish Child Law Centre provides free legal advice, guidance and information about the law for and about children and young people.

Clan Childlaw provides free legal advice and representation for children and young people.

The Ethnic Minorities Law Centre provides legal advice and representation to individuals from Black and Minority Ethnic (BME) communities in Scotland.

Q:
Who checks the Commissioner’s accounts?
A:

Because the Commissioner is funded by public money, it’s important that their accounts are checked over – or audited – and that as a member of the public you have access to these audited accounts.

Like all public bodies, the Commissioner publishes an annual statement of expenditure each year as well as accounts. This says how much money’s been spent on:

  • public relations
  • overseas travel
  • hospitality and entertainment
  • external consultancy.

Our accounts are checked by:

The Auditor General for Scotland

The Commissioner must send their accounts to this person every year. Their office will inspect the accounts.

The Scottish Parliament

The Commissioner receives their approved budget on a monthly basis from the SPCB.

The Advisory Audit Board

The Advisory Audit Board (AAB) advise the Commissioner on, and review, the system of internal control and the arrangements in place for corporate governance, managing risk and auditing financial and management performance. The AAB will provide assurance through a process of constructive challenge. 

Q:
Who’s responsible for the funding the Commissioner gets?
A:

The law that sets out the Commissioner’s role says that the Commissioner or a member of their staff has to be responsible for:

  • signing their accounts
  • making sure their finances are regular and correct
  • making sure resources are used economically, efficiently and effectively.

The Commissioner acts in the role of accountable officer, and in this role they are answerable to the Scottish Parliament.

This means that – while the Commissioner is independent – the law does say they should spend the money they get from the public in a reasonable way, and there are systems in place to make sure this happens in practice.

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