Universal Periodic Review 2022: Scottish Government Position Statement

1. Human Rights Legal Framework and Participation

As part of the UK, Scotland has legal obligations under a range of international human rights treaties, which the Scottish Government works to respect, protect, and fulfil. Indeed, the Scottish Government champions international human rights standards and believes that the UK Government should do the same. We believe that a rules-based international order, grounded in a respect for human rights, democracy, and the rule of law, creates the best conditions for success for countries in the international system.

At the domestic level, the protection and fulfilment of international human rights obligations can be strengthened through domestic human rights law. The domestic human rights legislative agenda in Scotland is progressive and participatory, and our clear collective ambition and direction of travel is to extend and protect human rights safeguards. There is overwhelming support in Scotland for the Human Rights Act 1998^[11] and our intention is to go further by incorporating a range of internationally-derived rights into Scots law.

Our commitment to international and domestic human rights legal frameworks, and our commitment to taking a participatory approach to policy-making, provides the basis for all of our work aimed at making rights real for people in Scotland.

A) Scotland's Human Rights Bill

The Scottish Government has accepted all 30 of the progressive, bold and ambitious recommendations from the National Taskforce for Human Rights Leadership for a new human rights framework for Scotland. The Taskforce completed over fifty engagements to capture views on a range of rights to inform the development of these recommendations. This engagement was underpinned by hearing directly from a diverse spectrum of key groups of rights-holders who are seldom heard, and with key groups whose rights are currently least realised. This work was facilitated by the Human Rights Consortium Scotland and the Scottish Human Rights Commission ("SHRC").

As part of taking forward the recommendations from the Taskforce, a new Human Rights Bill will be introduced to the Scottish Parliament during this parliamentary session. This will represent a significant and historic milestone in Scotland's human rights journey. The Bill will give effect to a wide range of internationally-recognised human rights, belonging to everyone in Scotland, as far as possible within devolved competence, and will strengthen domestic legal protections by making them enforceable in Scots law.

The Bill will incorporate into Scots law, as far as possible within devolved competence, the International Covenant on Economic, Social and Cultural Rights ("ICESCR"), the Convention on the Elimination of Discrimination Against Women ("CEDAW"), the Convention on the Elimination of All Forms of Racial Discrimination ("CERD") and the Convention on the Rights of Persons with Disabilities ("CRPD"). The Bill will also include a right to a healthy environment, and will include provision to ensure equal access to everyone to the substantive rights contained in the Bill, including older people and LGBTI people.

The intention of the new Bill will be to provide a high-level framework that ultimately allows all rights-holders in Scotland to understand and claim their rights. Our intention is for the Bill to place duties on public bodies discharging devolved functions.

Incorporating four different international treaties into Scots law and within devolved competence is a complex and technical endeavour, and we want ensure we deliver a Bill that will create a genuine step-change in building an enhanced human rights culture in Scotland. We are benefitting from the ongoing engagement and constructive input of many stakeholders, in particular our Human Rights Lived Experience Board^[12], Advisory Board^[13] and Executive Board^[14].

The Scottish Government will consult formally on our proposals in 2023. The Scottish Government will also seek a range of views on the development of guidance, capacity-building and implementation.

B) Incorporation of the UN Convention on the Rights of the Child

In March 2021, the Scottish Parliament unanimously passed the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill^[15] to incorporate the United Nations Convention on the Rights of the Child ("UNCRC") and Optional Protocols 1 and 2^[16] directly into Scots law subject to the limits of devolved competence.

Under the Bill, public authorities - including health boards, councils, and the Scottish Government itself - would be legally obliged to respect children and young people's incorporated UNCRC rights. The Bill would make it unlawful for public bodies to act in a way that is incompatible with the UNCRC rights ("requirements" in the Bill), and children, young people, and their representatives would be able to use the courts to enforce their rights. The Bill would deliver a proactive culture of everyday accountability for children's rights across public services in Scotland and would ensure that public authorities take proactive steps to ensure compliance with children's rights in their decision-making and service delivery.

The Bill also contains specific measures to remove barriers that children and young people may face in realising their rights under the Bill and in accessing justice. These provisions include giving the Children and Young People's Commissioner in Scotland and SHRC the power to bring or intervene in proceedings in which a person claims that a public authority has acted, or proposes to act, in breach of the UNCRC requirements as incorporated by the Bill.

The Bill would require Scottish Ministers to create a Children's Rights Scheme ("the Scheme"), setting out the arrangements they have, or would have, in place to fulfil their duty to comply and to secure better or further effect of the rights of the child. The Bill would require Scottish Ministers to report on the Scheme annually, including actions taken in the previous year and plans for taking forward children's rights in the year ahead. Scottish Ministers may amend the Scheme or make a new Scheme to replace it at any time.

The Bill would also require the Scottish Ministers to prepare and publish Child Rights and Wellbeing Impact Assessments ("CRWIAs") for:

• all new Bills being introduced by Scottish Ministers in the Scottish Parliament;
• most Scottish Statutory Instruments made by Scottish Ministers; and
• decisions of a strategic nature made by Scottish Ministers relating to the rights and wellbeing of children.

Certain parts of the UNCRC, for example the provision on military recruitment, relate to matters reserved to the UK Parliament and therefore cannot be legislated on by the Scottish Parliament. However, the vast majority of the provisions of the UNCRC are within the legislative competence of the Scottish Parliament and would be incorporated into Scots law by the Bill^[17]. This would ensure that the rights contained in the UNCRC are afforded the highest protection and respect possible within the current constitutional settlement. The Bill also makes provision to allow incorporation into domestic law of those provisions of the UNCRC that are currently beyond devolved powers, if the powers of the Scottish Parliament change in the future.

In April 2021, a reference of certain provisions of the Bill was made by UK Law Officers to the UK Supreme Court and a hearing before the UK Supreme Court took place in June 2021. In October 2021, the UK Supreme Court held that each of the provisions referred by UK Law Officers are outwith the legislative competence of the Scottish Parliament. While the Supreme Court judgment means that the Bill cannot receive Royal Assent in its current form, the majority of our work to implement the UNCRC can proceed and is continuing (see Section 5(B)).

In May 2022, the Deputy First Minister made a statement to the Scottish Parliament^[18] underlining the Scottish Government's continued commitment to the incorporation of the UNCRC subject to the limits of devolved competence, setting out how we propose to amend the Bill to address the Supreme Court judgment. He made clear that our intention is to address the Supreme Court's judgment by returning a revised Bill to Parliament via the Parliamentary Reconsideration stage. We hope to do that as soon as practicable.

C) Ratification of the Istanbul Convention

The UK Government announced the formal ratification of the Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence, also known as the Istanbul Convention, in July 2022^[19]. The Istanbul Convention is a legally-binding instrument, and as a matter of international law creates a wide-ranging legal framework and approach to combating violence against women and girls.

The UK Government is applying two reservations to its ratification of the Istanbul Convention, including a reservation relating to Article 59. This article is designed to ensure that where the residence status of a victim of domestic abuse is dependent on that of their partner, the victim is able to get a residence permit in their own right following the ending of the relationship (where this also ends their right to be in the country as a relative or dependant). This article is under review pending the results and evaluation of the Support for Migrant Victims ("SMV") scheme, which was due to conclude this summer. At that point, the UK Government will either maintain the reservation or withdraw it under Article 78(4).

Decisions about the ratification of treaties come within the international relations reservation in the Scotland Act 1998^[20]. In addition, the subject matter of Article 59 relates to immigration control, which is also a reserved matter under the Scotland Act 1998. Nonetheless, this decision runs counter to Scotland's policy approach in this area.

The Minister for Equalities and Older People has written to the UK Minister for Safeguarding, most recently in a joint letter with the Welsh Government in July 2022^[21], to outline the Scottish Government's disappointment with the UK Government's reservation to Article 59 and to urge them to reconsider this position once the evaluation of the SMV scheme is complete.

Along with Welsh counterparts, Scottish Government officials are liaising with counterparts in Westminster to press the need for the change urged by the Minister. Policy officials from Scotland and Wales will meet with UK Government counterparts in Westminster in the autumn, once the evaluation of the scheme is received, to try to seek a position that aligns with the Scottish and Welsh position that the Article 59 opt-out is contrary to the focus of the Istanbul Convention, i.e. the obligation it places on States to implement its provisions without discrimination on any grounds.

D) Human Rights Act 1998

The Scottish Government regards the Human Rights Act 1998^[22] as one of the most important and successful pieces of legislation ever passed by the UK Parliament. It has a 20-year track record of delivering justice, including for some of the most vulnerable people in society, and it plays a critically-important role in protecting human rights and fundamental freedoms throughout the whole of the UK. It is one of the principal ways that internationally-recognised human rights are given legal effect in the UK and it means that vitally-important safeguards set out in the European Convention on Human Rights ("ECHR") are available to everyone.

The Scottish Government has consistently made clear its support for the Human Rights Act in response to UK Government proposals for "reform"^[23]. In December 2020, the UK Government established an Independent Human Rights Act Review ("IHRAR") panel^[24] to consider whether changes should be made to the Human Rights Act. In its response to the IHRAR's call for evidence, the Scottish Government made clear that we would robustly oppose any attempt to erode or undermine the Human Rights Act^[25]. In its own report, the IHRAR panel made a number of recommendations but found no convincing case for a radical overhaul of the Human Rights Act^[26].

The UK Government outlined its most recent plans to repeal the Human Rights Act in a consultation document published in December 2021. Scottish Ministers subsequently wrote to the then-Lord Chancellor and met with him in person to reiterate their opposition to the UK Government's proposals^[27]. Scottish Ministers also wrote jointly with Welsh Ministers to urge the then-Lord Chancellor to take seriously the strong and consistent support for the Human Rights Act that has been conveyed in Scotland and Wales^[28].

The Scottish Government then formally responded to the UK Government's consultation in March 2022^[29]. In this response, we set out our strong and principled opposition to the idea that the Human Rights Act should be replaced with a Bill of Rights, and our concern that the existing protections provided by the Human Rights Act and by the UK's status as a full state party to the ECHR will be undermined and eroded.

The UK Government introduced its Bill of Rights Bill^[30] to the UK Parliament in June 2022. The Scottish Government's initial assessment of the restrictive and regressive effects of the Bill was set out in a submission to the UK Parliament's Joint Committee on Human Rights^[31] in August 2022.

While there is now uncertainty about the future of the Bill, the current Lord Chancellor indicated in October 2022 that he remains committed to reforming the Human Rights Act through future legislation. The Scottish Government will continue to urge the UK Government to step back from any future attempt to repeal or alter the intended effects of the Human Rights Act, to affirm their commitment to the ECHR, and to focus on making rights real for everyone across the whole of UK society. We will continue to work closely with the Welsh Government, civil society campaigners, the NHRIs and others to defend the Human Rights Act and to press the UK Government to comply in full with the UK's international obligations.

E) Scottish Human Rights Commission

SHRC was established by the Scottish Commission for Human Rights Act 2006^[32]. SHRC has a general duty to promote human rights and encourage best practice in relation to human rights in Scotland^[33]. It can fulfil this remit by providing information, guidance and education, by conducting inquiries, by monitoring law, policy and practice, and by intervening in civil court proceedings. SHRC is accredited as an "A-Status" NHRI within the UN system. This means it can vote and hold governance positions with the Global Alliance of NHRIs and can speak at the UNHRC.

SHRC receives funding on a cash basis from the Scottish Parliamentary Corporate Body ("SPCB") and occasional small grants from other sources, as detailed in SHRC's Annual Report and Accounts. SHRC's budget for 2020-2021 was �1.135 million^[34]. This included �100,000 approved contingency funding for additional temporary staff members and �25,000 funding from the Scottish Government towards the costs involved in co-chairing the Deaths in Custody Review. Expenditure was within 2% of the approved budget. The core cash budgets approved by the SPCB in previous years can be found in SHRC's Annual Report and Accounts for 2017-2018^[35], 2018-2019^[36], and 2019-2020^[37] respectively.

F) Scotland's National Action Plan for Human Rights

The vision of Scotland's National Action Plan for Human Rights ("SNAP") is a Scotland where all can live with human dignity. SNAP was the first national human rights action plan in any part of the UK. It is based on experience from other European and Commonwealth countries, as well as guidance from the UN and the Council of Europe^[38]. It is unique in its efforts to be a collaborative platform between government, public bodies, civil society and rights-holders with lived experience.

Since late 2017, work has been taking place to develop Scotland's second National Action Plan for Human Rights ("SNAP 2"). This development work has drawn heavily on lessons identified from an independent evaluation of the first SNAP and a National Participation Process in 2017 involving over 1,000 people^[39]. From 2018 to 2019, planning was led by a Development Working Group of around 15 people from Scottish civil society and the public sector^[40]. Detailed proposals for SNAP 2 were published for public consultation in autumn 2019 and received broadly positive feedback and recommendations for improvement^[41].

Development of SNAP 2 was disrupted by COVID-19. However, in early 2021, Scottish Ministers approved a business case for further work. In October 2021, a SNAP Secretariat Lead was appointed for an interim period. This new role is hosted by SHRC, with funding and resources provided by SHRC and the Scottish Government. It is the first step to setting up a fully independent SNAP Secretariat that will support the new SNAP Leadership Panel and the ongoing development, implementation and monitoring of SNAP actions^[42].

In March 2022, members of a new SNAP Leadership Panel were appointed. This is a partnership involving different stakeholders, including those with lived experience of human rights challenges, who will work together as equals to review, revise, finalise, and launch Scotland's next SNAP^[43].

G) National Performance Framework

Scotland's National Performance Framework ("NPF") is our vision for the nation we want to be^[44], supported by National Outcomes for Scotland's wellbeing^[45], in the context of global challenges and uncertainty. The NPF goes beyond the important but narrow economic measures of success, and gives Scottish expression to the United Nations Sustainable Development Goals.

Scotland's NPF has human rights embedded at its heart and includes an explicit human rights National Outcome: "We respect, protect and fulfil human rights and live free from discrimination"^[46]. Specifically, we recognise and protect the intrinsic value of all people and we are a society founded on fairness, dignity, equality and respect. We demonstrate our commitment to these principles through the way we behave with and treat each other, in the rights, freedoms and protections we provide, and in the democratic, institutional and legal frameworks through which we exercise power.

The Human Rights National Outcome is measured using four National Indicators: "Access to justice", "Influence over local decisions", "The quality of public services" and "Public services that treat people with dignity and respect"^[47]'. The Human Rights indicators were chosen and quality-assured by the National Performance Framework Technical Advisory Group as part of the 2018 National Performance Framework Review^[48]. Scottish Ministers are required by the Community Empowerment (Scotland) Act 2015^[49] to review the National Outcomes within five years of their previous publication, and the next statutory review is set to conclude during the third term of this Parliament.

H) Participation and Open Government

The Open Government Partnership ("OGP")^[50] is a global partnership that brings together government reformers and civil society leaders to create Action Plans that make governments more inclusive, responsive, and accountable. Scotland has been a member of the OGP since 2016, and has produced three Action Plans to date.

Scotland's second Open Government Action Plan (2018-20)^[51] was published in January 2019. This wide-ranging programme was a practical step towards the First Minister's ambition to be an open and accessible government and to implement reforms on strengthening democracy. It aligned with the SG2020 vision of "open, capable and responsive" as well as the values of openness and transparency in the NPF^[52]. A key output was a Participation Framework^[53], a publicly-available resource developed in collaboration with civil society. This provides a guide to good practice in participation across government, covering when, why, and how participation work with stakeholders and members of the public can be best designed and delivered.

Since then, the Scottish Government has made a range of commitments to involve people in the decisions that matter to them. Two Citizens' Assemblies have been held, and commitments have been made to establish annual Citizens' Assemblies, a Citizens' Assembly for under 16s, and to take a person-centred approach to COVID-19 Recovery. An expert working group was convened to provide recommendations on how we can deliver these commitments through developing a broad range of participation and democratic innovations, and by using this system as a basis to establish routine use of Citizens' Assemblies. The working group's report was delivered in early 2022^[54] and the Scottish Government is currently preparing a response that will set out how these innovations will be taken forward.

Scotland's third Open Government Action Plan (2021-25)^[55] was published in early 2022, and continues the theme of working collaboratively with civil society to deliver improved and innovative approaches to participation and transparency across government. This includes commitments on fiscal openness and transparency, increasing participation in health and social care services, increasing public and civil society engagement in the delivery of a just transition to net zero, open and accessible data, and participation across government.

Work is now underway to enhance the Participation Framework, including through consideration of equality and inclusion and design work to improve usability. This will be followed by training for staff across government, supporting them to use the Participation Framework in a way that delivers ethical, inclusive, and meaningful engagement and participation opportunities for all.

I) Volunteering and the Third Sector

The Volunteering Action Plan^[56] was published in June 2022 and aims to create a Scotland where everyone can volunteer more often and throughout their lives. The Plan was co-produced with over 100 participants and takes a human rights-based approach with participation at its heart. It provides a renewed focus on the contribution of volunteers in our communities and on seeking to tackle inequality in volunteering through supporting the most disadvantaged in our society and by reducing barriers to volunteering. We will build momentum for volunteering over the course of the Plan to raise the profile of volunteering and its impact on society.

The �50 million Wellbeing Fund was part of a �350 million package of emergency funding to support the people most affected by the pandemic. Open application rounds were held in April and June 2020 and total grants of �21.6 million were made, with each grant ranging from �5,000 to �100,000. All supported projects were delivered by the end of August 2020 or shortly thereafter. Beyond that, �4 million was distributed through small grants to support local charities and social enterprises, �10 million was allocated to meet immediate national priorities, and all 32 Third Sector Interfaces received a 25% funding boost. The remaining funds were rolled into the Communities and Third Sector Recovery Programme.

The �25 million Third Sector Resilience Fund closed for applications in September 2020, having awarded grants totalling �21.68 million to over 1,300 organisations. The Supporting Communities Fund also closed to applications then, having awarded a total of over �17 million to 373 community anchor organisations.

In response to a demand for a move away from resilience to recovery, a �25 million Community and Third Sector Recovery Programme ("CTSRP") was announced in the Programme for Government 2020-2021^[57], as part of the Scottish Government's �350 million emergency response to the COVID-19 pandemic. The CTSRP opened for applications in September 2020 and an additional �15 million in funding was made available to the programme as part of the Winter Social Support Package, bringing the value of the fund up to �40 million. The additional funding enabled support for the Adapt and Thrive Programme to continue until the end of August 2021. A total of 2126 organisations had applied to the Adapt and Thrive Programme with 889 organisations receiving awards totalling �30,663,959.

This year the Scottish Government will introduce a Charities (Regulation) (Scotland) Bill into the Scottish Parliament to take forward improvements to the regulation of charities registered in Scotland. The Bill is based around 10 proposals for the modernisation of the Charities and Trustee Investment (Scotland) Act 2005^[58], submitted to the Scottish Government by the Scottish Charity Regulator ("OSCR") in 2018^[59]. The proposals were consulted on in 2019 and 2021 with over 400 responses in total indicating broad support for all the proposals. The Bill is focused on improving trust and confidence in the charity sector and practical updates to charity regulation in Scotland.