Building a New Scotland: Creating a modern constitution for an independent Scotland

Annex A: Human rights and equality in Scotland

Rights drawn from the European Convention on Human Rights are written into Scotland's devolution legislation. Laws passed by the Scottish Parliament that are incompatible with such Convention Rights are, simply, 'not law.'^[167]

Under the Scotland Act 1998, it falls to Scottish Ministers and the Scottish Parliament to observe and implement the UK's international obligations in devolved areas, including international human rights obligations. A Minister or Member of the Scottish Parliament is required to make a statement when introducing primary legislation that, within their view, it is within the legislative competence of the Scottish Parliament and therefore compatible with Convention Rights, and to provide a policy memorandum which sets out amongst other things the Bill's effects, if any, on human rights.

The Scotland Act also gives the Scottish courts the power to strike down Scottish Parliament legislation if it is found to be incompatible with Convention Rights.

Acts of the Scottish Parliament are, therefore, subject to stronger controls in relation to compatibility with Convention Rights than UK Acts are.

However, as the example of the UNCRC Bill demonstrates, the powers of the Scottish Parliament to protect and promote human rights even in devolved areas is limited. The Westminster Parliament ultimately has the power to alter human rights across both devolved and reserved areas and is not bound by the Human Rights Act. In an independent Scotland, the UNCRC Bill would, by now, already have been in force and the protections it provides to children would have commenced. Children would have been able to seek remedies and courts could already have been exercising their powers in relation to legislation and actions by public authorities that were incompatible with children's rights.

As outlined in this paper, the Scottish Government is determined to advance equality for all and to tackle inequality.^[168] However, responsibility for equal opportunities is currently largely reserved to the Westminster Parliament, with only specific and limited exceptions. The Scottish Government has advanced equality legislation using these limited powers, for example with the Scottish Specific Duties and the introduction of additional equality legislation, including bringing into force the Fairer Scotland Duty.

In line with recommendations from the First Minister's National Advisory Council on Women and Girls,^[169] the Scottish Government has pressed the Westminster government for the full devolution of equality of opportunity. However, only independence would give Scotland the full range of powers over equality law, allowing us to secure stronger equality protections, within and beyond a codified constitution.

Human rights and equality in Scotland since devolution

1998:

• The Consultative Steering Group publishes its 'Shaping Scotland's Parliament' report, setting out four key principles that should inform how the Parliament works, including being accountable to the people, being open and accessible and promoting equal opportunities^[170]
• Scotland Act 1998, establishing the devolved Scottish Parliament and Scottish Government. Human rights are devolved^[171]
• UK Human Rights Act 1998, incorporating the European Convention on Human Rights into UK law^[172]

2003:

• Commissioner for Children and Young People (Scotland) Act 2003, establishing the Children and Young People's Commissioner Scotland^[173]

2006:

• Scottish Commission for Human Rights Act 2006, establishing the Scottish Human Rights Commission^[174]
• UK Equality Act 2006, establishing the Equality and Human Rights Commission^[175]

2007:

• Equality and Human Rights Commission established

2008:

• Scottish Human Rights Commission established

2010:

• UK Equality Act 2010, bringing together existing equality legislation^[176]

2012:

• Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012, imposing additional duties on specified Scottish public bodies^[177]

2013:

• Scotland's National Action Plan on human rights 2013 – 2017, an initiative co-produced in partnership between the Scottish Government, the Scottish Human Rights Commission, civil society and the wider public sector, launched^[178]

2014:

• Children and Young People (Scotland) Act 2014, placing duties on Scottish Ministers and specific public bodies to report on their actions to progress and implement children's rights set out in the UNCRC and increasing the powers of the Children and Young People's Commissioner for Scotland^[179]

2016:

• Land Reform (Scotland) Act 2016, requiring Scottish Ministers to prepare and publish land rights and responsibilities statement, which must include a focus on the promotion of human rights (including rights set out in the International Covenant on Economic Social and Cultural Rights) and encouraging equal opportunities^[180]

2017:

• First Minister's National Advisory Council on Women and Girls established^[181]

2018:

• Fairer Scotland Duty (set out in Part 1 of the Equality Act) comes into force in Scotland^[182]
• The Social Security Act (Scotland) 2018 sets out that social security is a human right^[183]
• Gender Representation on Public Boards (Scotland) Act 2018^[184]
• First Minister's Advisory Group on Human Rights Leadership is established to make recommendations on next steps in Scotland's human rights journey and publishes its recommendations in December^[185]

2019:

• National Taskforce for Human Rights Leadership established to take forward recommendations of the First Minister's Advisory Group on Human Rights^[186]

2020:

• First Minister's National Advisory Council on Women and Girls publishes their 2020 Report and Recommendations^[187]

2021:

• Publication of the National Taskforce for Human Rights Leadership Report^[188]
• UNCRC Bill passed unanimously by the Scottish Parliament. The Bill was referred by the UK Government to the Supreme Court and, in October 2021, the Supreme Court ruled that certain aspects of the Bill were out with the powers of the Scottish Parliament^[189]

2022:

• First Minister's National Advisory Council on Women and Girls Phase 2 established^[190]
• Scottish Parliament passes the Gender Recognition Reform (Scotland) Bill with support across all political parties represented in the Parliament^[191]

2023:

• Westminster government makes an order under section 35 of the Scotland Act 1998, preventing the Scottish Parliament's Gender Recognition Reform (Scotland) Bill from proceeding to Royal Assent^[192]

Upcoming:

• Scottish Human Rights Bill incorporating key human rights into Scots law, within limits of devolved competence
• A revised UNCRC Bill incorporating children and young people's rights into Scots law