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

Endnotes

1. Chair of the committee created by the United Nations Commission on Human Rights to draft the Universal Declaration of Human Rights, at the presentation of IN YOUR HANDS: A Guide for Community Action for the Tenth Anniversary of the Universal Declaration of Human Rights, United Nations, New York, 27 March 1958. Cited in: United Nations (2022) Human Rights Teaching Guide and Resources

2. The practical implications and method of incorporation of any further rights and equalities treaties beyond those currently committed to by the Scottish Government would be a matter for the government of the day, and would take account of the commitment in this publication to including these in the interim constitution of a newly-independent Scotland

3. See for example, Mason, RA & Smith, M (2006) A Dialogue on the Law of Kingship among the Scots: George Buchanan's De Iure Regni apud Scotos with a new introduction by Roger A. Mason, Saltire Society, Edinburgh.; MacCormick, N., Questioning Sovereignty. Oxford University Press, 1999. For a critical analysis of the historic claim of popular sovereignty, see Kidd, C. Sovereignty and the Scottish Constitution Before 1707, Juridical Review, 2004, pp. 225-236

4. Anon, 1988. A Claim of Right for Scotland, Edinburgh: [The Campaign]. The Scottish Parliament endorsed the Claim of Right on 26 January 2012, 28 March 2017 and 10 January 2023. The House of Commons endorsed the Claim of Right on 4 July 2018

5. McCrone, D and Keating, M. Exploring Sovereignty in Scotland. The Political Quarterly, 1 December 2022. The authors included questions on sovereignty in the Scottish Social Attitudes Surveys of 2019 and 2021, and found that a majority of people in Scotland agreed that "People in Scotland should have the ultimate right to decide for themselves how they should be governed" in both years (60% agreed in 2019 and 58% in 2021)

6. The Constitution Unit (2023) Key constitutional terms and democratic practices: Explainers (UCL)

7. The Constitution Unit (2023) What are constitutional conventions? (UCL)

8. McEwen, N. The Sewel convention and Brexit | The Constitution Unit Blog (constitution-unit.com), 2020. A. McHarg and A. L. Young, 'The Resilience of the (Old) British Constitution', U.K. Const. L. Blog (8th Sept. 2021)

9. MacCormick v Lord Advocate, 1953 SC 396

10. House of Commons Library (2023) The Crown and the constitution (published 11/01/23)

11. Lilly, A. (12 May 2023) Explainer: The Parliament Acts: What are the Parliament Acts and what do they do?, Institute for Government

12. Scottish Government (2022) Building a New Scotland: Renewing democracy through independence, p. 21

13. See Hazell, R and Sayers-Carter, C. (2022) Reforming the Prerogative The Constitution Unit, p. 48: "This report contains examples of apparent conventions which ultimately lacked that binding quality: the proportionality principle in appointments to the House of Lords, violated by David Cameron and Boris Johnson (chapter 5); the requirement to consult the House of Commons before engaging in military action overseas, ignored by Theresa May (chapter 3)."

14. The Constitution Unit (2023) What is the UK Constitution? (UCL)

15. Scottish Government (2022) Building a New Scotland: Renewing democracy through (independence, p. 30

16. Torrance, D. (25 January 2022) Research Briefing: Introduction to devolution in the United Kingdom, House of Commons Library, p. 5; and Paun, A. et al (16 January 2018) Sewel convention: How the Sewel convention works in practice and what happens when devolved consent is withheld, Institute for Government

17. Supreme Court (2022) Judgment: REFERENCE by the Lord Advocate of devolution issues under paragraph 34 of Schedule 6 to the Scotland Act 1998, UKSC 31, para. 77

18. Supreme Court (2022) Judgment: REFERENCE by the Lord Advocate of devolution issues under paragraph 34 of Schedule 6 to the Scotland Act 1998, UKSC 31, para. 82

19. Scotland Act 2016 TSO (The Stationery Office), 2016 (section 63A)

20. Scottish Government (2022) Building a New Scotland: Renewing democracy through independence, p. 34

21. Scotland Act 1998 TSO (The Stationery Office), 1998 (Section 35)52

22. Scottish Parliament (2023) Bill and Laws: Gender Recognition Reform (Scotland) Bill: Stage 3 – Final changes and vote

The Bill was also subject to extensive public consultation and engagement and the Presiding Officer of the Scottish Parliament and Law Officers were content that it was within the Parliament's powers to pass. In 2017, the Scottish Government consulted on the principles of reform to the Gender Recognition Act. A further consultation in 2019 focused on a number of specific aspects – including the requirement for applicants to live in their acquired gender for three months prior to submitting an application. The Scottish Parliament's Equalities, Human Rights and Civil Justice Committee also consulted on the Gender Recognition Reform (Scotland) Bill

Scottish Government (2018) Review of the Gender Recognition Act 2004: consultation analysis

Scottish Government (2021) Gender Recognition Reform (Scotland) Bill: consultation analysis

Scottish Parliament (2023) Bill and Laws: Gender Recognition Reform (Scotland) Bill:

23. UK Government Gender Recognition Reform (Scotland) Bill: statement from Alister Jack, 16 January 2023

24. UK Government Scottish Deposit Return Scheme: UK internal market exclusion - (www.gov.uk), 27 May 2023

25. The Deposit and Return Scheme for Scotland Regulations 2020, TSO (The Stationery Office), 2020

26. Department for Environment, Food and Rural Affairs (2021) Consultation on Introducing a Deposit Return Scheme in England, Wales and Northern Ireland

27. UK Government (20 January 2023) Introducing a Deposit Return Scheme for drinks containers in England, Wales and Northern Ireland - government response

28. Under the Westminster Labour Government, the Scotland Act 1998 set up the Scottish Parliament and the Government of Wales Act 1998 set up a Welsh Assembly (now referred to as Senedd Cymru or the Welsh Parliament). The Government of Wales Act 2006 gave legislative powers to the Welsh Assembly and established a separate Welsh civil service. The Good Friday Agreement of 1998 led to the establishment of the Northern Ireland Assembly. The Westminster Labour Government also reformed the House of Lords with the House of Lords Act 1999 removing most of the hereditary Peers, undertook electoral reform and incorporated key human rights and equality protections into UK law, including the Human Rights Act 1998. Its Constitutional Reform Act 2005 also set up the UK Supreme Court and increased the independence of the judiciary. Under Prime Minister Gordon Brown, the Labour Government also published the ‘An elected second chamber: further reform of the House of Lords’ white paper in 2008, which committed the government to the creation of a 80% or 100% elected House of Lords, however this was never taken forward

The Conservative – Liberal Democrat coalition government agreed a number of constitutional reforms in their 2010 ‘The Coalition: our programme for government’ agreement. While the Five-Year Fixed Term Parliament Act was enacted, other reforms included in the agreement, including replacing the House of Lords with “a wholly or mainly elected upper chamber on the basis of proportional representation” were not put in place None of these reforms have removed Westminster sovereignty or resulted in a single codified constitution

29. The Labour Party (2022) A New Britain: Renewing our Democracy and Rebuilding our Economy

30. Independent Commission on the Constitutional Future of Wales (2022) Interim report

31. The Constitution Unit (2023) What is the UK Constitution? (UCL)

32. Human Rights Act section 3, which states that, while 'so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights', this 'does not affect the validity, continuing operation or enforcement of any incompatible' primary legislation and of any incompatible subordinate legislation if 'primary legislation prevents removal of the incompatibility'

33. UK Parliament Illegal Migration Bill (2023)

34. House of Lords House of Commons Joint Committee on Human Rights (2018) Legislative Scrutiny: The EU (Withdrawal) Bill: A Right by Right Analysis: First Report of Session 2017-19

35. Northern Ireland has a separate equality legal framework, set out in a number of equality and anti-discrimination Acts. Equality Commission for Northern Ireland Legislation

36. Lilly, A. (12 May 2023) Explainer: The Parliament Acts: What are the Parliament Acts and what do they do?, Institute for Government

37. Miller, A. (2022) The Supreme Court's judgment on the UNCRC (Incorporation) (Scotland) Bill – what will be the impact on Scotland's human rights journey? (University of Strathclyde)

38. Scottish Government Protecting children's rights - gov.scot (www.gov.scot), 24 May 2022

39. The Scottish Parliament Key Principles

40. The 2021 Scottish Government and Scottish Green Party Shared Policy Programme, for example, clearly states the Scottish Government and Scottish Green Party's commitment to promoting equality and sets out that "equality, inclusion and human rights should underpin decision-making and delivery across the government and the wider public sector"

Scottish Government (2021) Scottish Government and Scottish Green Party Shared Policy Programme: working together to build a greener, fairer, independent Scotland

41. Scotland Act 1998, Schedule 5, para. L2

42. Equality Act 2010 (Specific Duties) (Scotland) Regulations (SSI 2012/162)

43. Equality Act 2010, Section 149

44. The Scotland Act 2016 transferred the power to commence the socio-economic duty to Scottish Ministers (Scotland Act 2016, section 38). The Scottish Government published interim guidance for public bodies on the Fairer Scotland Duty in 2018 and statutory guidance for public bodies in 2022. Scottish Government (2018) Fairer Scotland Duty: interim guidance for public bodies. Scottish Government (2022) Fairer Scotland Duty: guidance for public bodies

45. Gender Representation on Public Boards (Scotland) Act 2018, TSO (The Stationery Office), 2018

46. Homelessness etc. (Scotland) Act 2003, Section 2, TSO (The Stationery Office), 2003

47. The Homeless Persons (Unsuitable Accommodation) (Scotland) Amendment Order 2020, TSO (The Stationery Office), 2020

48. Scottish Government (2022) The Wellbeing Economy Monitor – December 2022 update, p. 1

49. Scottish Government (2022) The Wellbeing Economy Monitor – December 2022 update, p. 1

50. Scottish Government (2022) The Wellbeing Economy Monitor – December 2022 update, p. 1

51. Secretary of State for Scotland (3 May 2022) Letter to Deputy First Minister and Cabinet Secretary for Covid Recovery

52. In 2019, the Scottish Government established the National Taskforce for Human Rights Leadership to take forward the recommendations made in the 2018 Report of the First Minister's Advisory Group on Human Rights. In 2021, the Taskforce published the National Taskforce for Human Rights Leadership Report, setting out its recommendations on establishing a statutory framework for human rights that will bring recognised human rights treaties into domestic law to protect and advance the realisation of human rights for everyone in Scotland

First Minister's Advisory Group on Human Rights Leadership (2018) Recommendations for a new human rights frameworks to improve people's lives: Report to the First Minister (Scottish Government)

The National Taskforce for Human Rights Leadership (2021) National Taskforce for Human Rights Leadership Report (Scottish Government)

53. Scottish Government (2023) A Human Rights Bill for Scotland: Consultation

54. First Minister's Advisory Group on Human Rights Leadership (2018) "Recommendations for a new human rights framework to improve people's lives" Report to the First Minister

55. UK Government Parliament (2022) Bill of Rights Bill. UK Parliament (2022) Bill of Rights Bill: Explanatory Notes

56. Scottish Human Rights Commission (2022) Commission strongly opposed to UK Government's regressive Queen's Speech proposals to replace the Human Rights Act

57. BBC (2022) Bill of Rights: Liz Truss shelves plans to reform human rights law (7 September 2022)

58. House of Commons House of Lords Joint Committee on Human Rights (2022) Legislative Scrutiny: Bill of Rights Bill: Meeting on Wednesday 14 December 2022: Witness(es): Rt Hon Dominic Raab MP, Deputy Prime Minister and Lord Chancellor and Secretary of State for Justice, Ministry of Justice

59. House of Commons House of Lords Joint Committee on Human Rights (2023) Legislative Scrutiny: Bill of Rights Bill: Ninth Report of Session 2022-23, p. 10

60. UK Parliament (last updated 9 September 2022) Bill of Rights Bill

61. The Scottish Government (2022) UK Bill of Rights condemned

62. The Scottish Government The Human Rights Act and the British Bill of Rights (Human rights policy page) (accessed on 01 June 2023)

63. Amnesty International (2018) Press releases: Human Rights Act 'absolutely key' to big justice fights of last 20 years

64. The Welsh Government (2022) Written Statement: UK Government Bill of Rights

65. Retained EU Law (Revocation and Reform) Bill (as at 24 January 2023)

66. Morris, M. (2022) The retained EU law bill: What does it mean for workers' rights?, IPPR

67. Scottish Government (23 February 2023) News: Scottish Parliament refuses consent for Retained EU Law Bill

68. Scottish Government (8 June 2023) News: Retained EU Law Bill "risk to devolution"

69. "Since 1999, the Scottish Social Attitudes survey has found that, by a margin of 30 percentage points or more, adults in Scotland have been significantly more likely to say that they trust the Scottish Government to act in Scotland's best interests 'most of the time' or 'just about always', than to say that they trust the UK Government to do so." Scottish Government (2022) Building a New Scotland: Renewing democracy through independence, p. 25. Data from: Reid, S, Montagu I, and Scholes A (2019) Scottish Social Attitudes Survey 2019: attitudes to government and political engagement (Scottish Government). Data are available for all years between 1999- 2019, apart from 2008, 2014 and 2018. The Scottish Social Attitudes Survey 2021/22 found that two-thirds of "people in Scotland trust the Scottish Government to work in Scotland's best interests, compared with 22% who trust the UK Government to do so." Scottish Government (2022) Scottish Social Attitudes survey 2021/22: attitudes data, p. 5

70. As the Consultative Steering Group on the Scottish Parliament's principles set out. The Scottish Parliament Key Principles

71. Young, A. L., et al., Europe's Gift to the United Kingdom's Unwritten Constitution – Juridification, in: Albi, A., Bardutsky, S. (eds) (2019) National Constitutions in Europe and Global Governance: Democracy, Rights, the Rule of Law, pp. 83 – 139, p. 83

72. See: Wallis, J. (2015) What Role Can Constitution Making Play in State Building?, Cambridge University Press Blog

And: United Nations (2020), Guidance Note of the Secretary-General on United Nations Constitutional Assistance, p. 2

73. The Constitution Unit (2023) What is the UK Constitution? (UCL)

According to Young et al., the UK is the only European state without a codified constitution.

Young, A. L., et al., Europe’s Gift to the United Kingdom’s Unwritten Constitution – Juridification, in: Albi, A., Bardutsky, S. (eds) (2019) National Constitutions in Europe and Global Governance: Democracy, Rights, the Rule of Law, pp. 83 – 139, p. 83

74. Scottish Government (2022) Building a New Scotland: A stronger economy with independence, p. 36

75. A constitutional convention is a representative body that is tasked with discussing constitutional change, for example, discussing and drafting a new constitution.

Desai, P. (2020) Briefing Paper: Constitutional Conventions and Citizens' Assemblies: power to the people?, House of Commons Library, Number 07143, 17 January 2020 75

76. Scottish Human Rights Commission (2018) Human Rights Based Approach: A Self-Assessment Tool

77. Scottish Human Rights Commission (2018) Human Rights Based Approach: A Self-Assessment Tool

78. Participation, Non-Discrimination and Equality, and Empowerment are key elements of the PANEL principles, which outline what a human rights-based approach may look like in practice

Scottish Human Rights Commission (2018) Human Rights Based Approach: A Self-Assessment Tool

79. The Citizens' Assembly of Scotland took place between 2019 and 2021. See Citizens' Assembly of Scotland (2021) Doing Politics Differently: Recommendations for Action, and The Scottish Government (2021) Citizens' Assembly of Scotland – Doing Politics Differently report: Scottish Government response. Scotland's Climate Assembly took place between 2020 to 2022. See Scotland's Climate Assembly(2021) Scotland's Climate Assembly: Recommendations for Action, and The Scottish Government (2021) Scotland's Climate Assembly – recommendations for action: SG response

80. The European Commission for Democracy through Law, also known as the Venice Commission, is an advisory body of the Council of Europe on constitutional issues. It provides legal advice to member states of the Council of Europe on how to amend institutional and legal structures based on European and international in relation to the rule of law, human rights and democracy

81. UN assistance can be provided to any part of the constitutional development or reform process in response to a request from the relevant state government. United Nations (2020), Guidance Note of the Secretary-General on United Nations Constitutional Assistance, pp. 6-7

82. MacCormick, N. (1991) A Constitution for Scotland, Edinburgh Essays in Public Law, Edinburgh University Press. Scottish National Party (SNP) (2002) A Constitution for a Free Scotland. Bulmer, E. (2015) A Constitution for the Common Good: Strengthening Scottish Democracy after the Independence Referendum, Luath Press

83. The right to remedy for those who have experienced violations of their human rights is a central part of the international human rights system (United Nations High Commissioner for Human Rights (2023) OHCHR Accountability and Remedy Project: Improving accountability and access to remedy in cases of business involvement in human rights abuses). It is found in a wide range of international human rights treaties, including Article 8 of the Universal Declaration of Human Rights, Article 2 of the International Covenant on Civil and Political Rights and Article 13 of the European Convention on Human Rights.

States are expected to establish adequate administrative and judicial mechanisms for addressing claims of human rights violations and a failure to investigate such claims could give rise to a separate breach of human rights (UN Human Rights Committee, General Comment No. 31: Nature of the General Legal Obligation on States Parties to the Covenant, 26 May 2004, para. 15).

For remedies to be considered adequate, they must be affordable, timely, accessible and effective (Scottish Human Rights Commission (December 2020) Adequate and Effective Remedies for Economic, Social and Cultural Rights: Background briefing paper for the National Taskforce on Human Rights Leadership).

An independent Scotland will need to meet these obligations. The enforcement of rights will be underpinned by a wealth of mechanisms, developed through legislation, as well as institutions working to enforce human rights. The role of the Scottish Human Rights Commission as Scotland’s National Human Rights Institution will be of particular importance in this regard

84. Scottish Human Rights Commission (2022), Human Rights Based Approach: The Panel Principles

85. United Nations Office of the High Commissioner for Human Rights (2018) Human Rights and Constitution Making, p. 14

86. The Constitution of the Republic of Estonia (1992, revised in 2015)

87. European Commission for Democracy through Law (Venice Commission) (2010) Report on Constitutional Amendment, Study no. 469/2008, para. 26

88. Sveriges Riksdag (2022) The Constitution

89. Sveriges Riksdag (2022) The Constitution

90. Sveriges Riksdag (2022) The Constitution

91. European Commission for Democracy through Law (Venice Commission) (2010) Report on Constitutional Amendment, Study no. 469/2008, para. 238

92. A state needs to have the institutions necessary to sustain democracy, the rule of law, a functioning market economy, human rights and respect for and protection of minorities to fulfil the accession criteria (also referred to as the Copenhagen criteria) of the European Union.

European Commission (2023) European Neighbourhood Policy and Enlargement Negotiations (DG NEAR): Accession criteria

93. Both the Declaration of Arbroath and the 1689 Claim of Right reflect the tradition that, in Scotland, the sovereign is the servant of the people. Declaration of Arbroath (6 April 1320), National Records of Scotland Claim of Right Act 1689

94. A similar stance was taken by the European Court of Human Rights in relation to the European Convention on Human Rights' application to Montenegro following its independence, as stated in the Court's 2009 judgment on Bijelić v Montenegro and Serbia.

European Court of Human Rights (Second Section) Bijelić v Montenegro and Serbia, Application no. 11890/05, Judgment, 28 April 2009

Douglas-Scott, D., "Scotland, Secession, and the European Union", in: McHarg, A. et al. (2016) The Scottish Independence Referendum: Constitutional and Political Implications, Oxford University Press, pp. 175 – 196, p. 187

95. The precise wording of this right would be consulted on as part of the conversation with the people of Scotland about the terms of the interim constitution. It would draw on the longstanding legal protection in Scotland for a system of health care available free at the point of need, first set out in Part I: Section 1 of the National Health Service (Scotland) Act 1947, which states: (1) "It shall be the duty of the Secretary of State to promote the establishment in Scotland of a comprehensive health service designed to secure improvement in the physical and mental health of the people of Scotland and the prevention, diagnosis and treatment of illness, and for that purpose to provide or secure the effective provision of services in accordance with the following provisions of this Act"; and (2) "The services so provided shall be free of charge, except where any provision of this Act expressly provides for the making and recovery of charges."

96. Universal Declaration of Human Rights (1948), Article 1

97. House of Commons Library (2023) The coronation: History and ceremonial (version published 05/05/23)56

98. The 15 Commonwealth states that currently have His Majesty Charles III as their Head of State are Antigua and Barbuda, Australia, Belize, Canada, Grenada, Jamaica, New Zealand, Papua New Guinea. St Kitts and Nevis, St Lucia, the Bahamas, the Solomon Islands, the United Kingdom, St Vincent and the Grenadines, and Tuvalu

99. House of Commons Library (2023) The Crown and the constitution (published 11/01/23)

100. For more details on the religious elements of the laws of succession for the UK monarchy, see: Pepinster, C. ‘Monarchy and Religion in the UK’ and Cranmer, F., ‘Monarchy and Religion in Europe’ in Menon, A. and Hazell, R. (eds) (2023) The British Monarchy, UK in a Changing Europe and the Constitution Unit, UCL, pp. 51- 53 and pp. 54-57

101. Council of Europe (1985) European Charter of Local Self-Government

102. House of Lords (2014) Constitution Committee 8th Report - Scottish independence: constitutional implications of the referendum

103. Scotland Act 2016, Section 11

104. Public opinion across Scotland is divided on whether an independent Scotland should retain the monarchy or not. Recent polling includes: Morris, J. (11 October 2022) Do Scots want to keep the monarchy in an independent Scotland? (YouGov); Gray, Dr. E., Albernethy, S. (17 October 2022) Lukewarm views on the Monarchy in Scotland (Ipsos); Nutt, K. (30 December 2022) Poll: Scots favour republic to King Charles after Yes vote (The Herald); Curtice, J. (12 September 2022) The Monarchy and The Union: A Symbiotic Relationship? (What Scotland Thinks)

105. United Nations Office of the High Commissioner for Human Rights (2018) Human Rights and Constitution Making, p. 99

106. Benwell, R., Gay. O. (15 August 2011) Research Briefing: The Separation of Powers, House of Commons Library

107. While the Scottish Government's Scottish Elections (Franchise and Representation) Act 2020 extended voting rights for Scottish Parliament and local government elections to include all those with a legal right to live in Scotland, only British citizens, qualifying Commonwealth citizens and citizens of the Republic of Ireland can vote in UK general elections.

Johnston, N. (23 September 2022) Research Briefing: Who can vote in UK elections (House of Commons Library)

108. Constitution of Ireland (1937, last amended 2019), Article 28A

109. Folketinget (2013) The Constitutional Act of Denmark of June 5th 1953, Article 82

110. Equality and Human Rights Commission (2014) Equality, Human Rights and Constitutional Reform in Scotland: A report for the Equality and Human Rights Commission by Ewart Communications, p. 39

111. Research commissioned in 2014 by the Equality and Human Rights Commission found that civil society groups and non-governmental organisations generally believed that "a Constitutional Court should be established to adjudicate, expertly, on matters rather than using the general court system." Equality and Human Rights Commission (2014) Equality, Human Rights and Constitutional Reform in Scotland: A report for the Equality and Human Rights Commission by Ewart Communications, p. 90

112. United Nations Office of the High Commissioner for Human Rights (2018) Human Rights and Constitution Making, p. 99

113. According to the Comparative Constitutions Project, in 2020, 67 per cent of constitutions across the world, 68 per cent of constitutions across Western Europe, the United States of America and Canada, and 83 per cent of Eastern European constitutions contained provisions on the power to declare or approve war. The Comparative Constitutions Project (2022) Topics

114. Folketinget (2013) The Constitutional Act of Denmark of June 5th 1953, Article 19

115. The Constitution of the Kingdom of the Netherlands 2008, Article 96

116. In 2020, 88 per cent of the constitutions across the world included provisions on the requirements for birth right citizenship and 66 per cent included a provision on requirements for naturalisation.

The Comparative Constitutions Project (2022) Topics

117. United Nations Office of the High Commissioner for Human Rights (2018) Human Rights and Constitution Making, p. 7

118. United Nations (2020), Guidance Note of the Secretary-General on United Nations Constitutional Assistance, pp. 3-4

119. Amos, Merris (2014) Merris Amos: Scotland, Independence, and Human Rights (UK Constitutional Law Association, Constitutional Law Group)

120. Scottish Human Rights Commission (2014) Human Rights in Scotland's Future, Insights Paper, p. 14

121. Scottish Government (2023) A Human Rights Bill for Scotland: Consultation

122. This again reflects the principle of Non-discrimination and Equality, a key part of the PANEL principles that set out how to take a human rights-based approach to an issue.

Scottish Human Rights Commission (2018) Human Rights Based Approach: A Self-Assessment Tool

123. The principle of non-retrogression states that there must not be a regression of rights and is, for example, set out in Article 5 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). There must also not be a regression of rights. This is closely linked to the principle of progressive realisation, which is included in Article 2 of ICESCR. States need to allocate resources to ensure the fulfilment of economic, social and cultural rights. The principle of progressive realisation recognises that states may face resource constraints. They, therefore, have an obligation to make continual progress on the fulfilment of these rights, with the obligation to use the maximum available resources to achieve this

124. Webster, E. (2022) "I Know it When I See it": Can talking about 'dignity' support the growth of a human rights culture? (Centre of the Study of Human Rights Law, Strathclyde Law School)

125. National Taskforce for Human Rights Leadership (2021) National Taskforce for Human Rights Leadership Report (The Scottish Government)

126. Universal Declaration of Human Rights (1948), Article 1

127. Charter of Fundamental Rights of the European Union (2012), 2012/C 326/02, Article 1

128. The German Basic Law, Article 1

129. Constitution of the Republic of South Africa (1996), Article 1 and Article 10

130. Social Security (Scotland) Act 2018, Section 1 (b) and (d)

131. United Nations Office of the High Commissioner for Human Rights (2018) Human Rights and Constitution Making, p. 59

132. United Nations Office of the High Commissioner for Human Rights (2018) Human Rights and Constitution Making, pp. 60-61

133. Smith, A. Internationalisation and constitutional borrowing in drafting Bills of Rights, International & Comparative Law Quarterly, Vol 60, Issue 4, November 2011, pp. 867 – 893, p. 868

134. Equality Act 2010, Section 149

135. The Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012

136. International Covenant on Civil and Political Rights (1966), Article 25

137. International Covenant on Economic, Social and Cultural Rights (1966)

138. International Covenant on Economic, Social and Cultural Rights (1966) Article 8; International Covenant on Civil and Political Rights (1966) Article 22; The European Convention on Human Rights Article 11; International Labour Organization Convention No. 87 – Freedom of Association and Protection of the Right to Organise Convention (1948) Articles 3, 8 and 10; International Labour Organization Convention No. 98 – The Right to Organise and Collective Bargaining Convention (1949)

139. United Nations Office of the High Commissioner for Human Rights, Press Releases: Special Procedures: UN rights expert: "Fundamental right to strike must be preserved", 9 March 2017

140. Constitution of the Portuguese Republic, Seventh Revision (2005), Article 57

141. Swedish Riksdagen (2018) The Instrument of Government (1974:152), Article 14

142. South Africa's constitution embeds a number of economic and social rights. 26(2) of the South African Constitution, for example, reflects Article 2(1) of the International Covenant on Economic, Social and Cultural Rights by placing a duty on the state to take reasonable steps, considering available resources, to achieve the progressive realisation of the right to adequate housing. Another example is Denmark's constitution, which embeds the right to work and to social security in Article 75.

Constitution of the Republic of South Africa (1996)

Folketinget (2013) The Constitutional Act of Denmark of June 5th 1953

143. Kavanagh, M. The Right to Health: Institutional Effect of Constitutional Provisions on Health Outcomes, Studies in Comparative International Development, Vol 51, Issue 3, September 2016, pp. 328 – 364, p. 355

144. Constitution of the Portuguese Republic, Seventh Revision (2005), Article 64(2)(a)

145. Kavanagh, M. The Right to Health: Institutional Effect of Constitutional Provisions on Health Outcomes, Studies in Comparative International Development, Vol 51, Issue 3, September 2016, pp. 328 – 364, p. 355

146. Wolffe, W. J. QC (2014) Economic and social rights in Scotland: lessons from the past; options for the future: A lecture for International Human Rights Day 2014

147. Equality and Human Rights Commission (2014) Equality, Human Rights and Constitutional Reform in Scotland: A report for the Equality and Human Rights Commission by Ewart Communications, p. 64

148. The Comparative Constitutions Project (2022) Topics (What's in constitutions?)

149. Hellenic Parliament (2019) The Constitution of Greece: Revised by Resolution of November 25, 2019 of the IXth Revisionary Parliament

150. Despite the inclusion of the right to a healthy environment in the Greek constitution, the European Committee of Social Rights found in its 2007 decision on Marangopoulos Foundation for Human Rights (MFHR) v Greece that Greece had failed to take appropriate measures and no appropriate strategy had been developed to combat public health risks in relation to the mining of lignite.

Council of Europe, European Committee of Social Rights, Marangopoulos Foundation for Human Rights (MFHR) v Greece, Complaint No. 30/2005, Decision on the Merits, 6 December 2006

151. Jeffords, C. and Gellers, J. C. Constitutionalizing Environmental Rights: A Practical Guide, Journal of Human Rights Practice, Vol 9, Issue 1, February 2017, pp. 136 -145, pp. 143-144

152. Scottish Government (2022) Scottish Land Rights and Responsibilities Statement 2022

153. Accountability and Empowerment are key aspects of the PANEL principles that set out how to take a human rights-based approach to an issue

Scottish Human Rights Commission (2018) Human Rights Based Approach: A Self-Assessment Tool

154. Hunt, M. et al. (9 January 2023) Bonavero Reports 1/2023: The Making of Bills of Rights: Relevant International Human Rights Obligations: An Analysis of the United Kingdom's Obligations, p. 73

155. United Nations Office of the High Commissioner for Human Rights (2018) Human Rights and Constitution Making, p. 115

156. United Nations Office of the High Commissioner for Human Rights (2018) Human Rights and Constitution Making, p. 115

157. The Paris Principles act as a benchmark against which National Human Rights Institutions are assessed. The International Coordinating Committee's Sub-Committee on Accreditation is responsible for the accreditation process of National Human Rights Institutions.

United Nations Office of the High Commissioner (2022) Human Right Instruments: Principles relating to the Status of National Institutions (The Paris Principles)

158. Equality Act 2006, Section 7

159. Children and Young People's Commissioner Scotland (2023) Who is the Commissioner?

160. Office of the United Nations High Commissioner for Human Rights (2010), National Human Rights Institutions: History, Principles, Roles and Responsibilities, Professional Training Series No. 4 (Rev. 1), p. 16

161. National Taskforce for Human Rights Leadership (2021) National Taskforce for Human Rights Leadership Report (The Scottish Government)

162. First Minister's National Advisory Council on Women and Girls (2021) 2020 Report and Recommendations

163. Scottish Government (2023) A Human Rights Bill for Scotland: Consultation

164. Bulmer, E. (2019) Independent Regulatory and Oversight (Fourth-Branch) Institutions: International IDEA Constitution-Building Primer 19, International Institute for Democracy and Electoral Assistance

165. United Nations Human Rights Office of the High Commissioner (2023) About democracy and human rights

166. As outlined in: Scottish Government (2022), Building a New Scotland: Renewing Democracy through Independence

167. Scotland Act 1998 section 29(1)

168. The 2021 Scottish Government and Scottish Green Party Shared Policy Programme, for example, clearly states the Scottish Government and Scottish Green Party's commitment to promoting equality and sets out that "equality, inclusion and human rights should underpin decision-making and delivery across the government and the wider public sector".

Scottish Government (2021) Scottish Government and Scottish Green Party Shared Policy Programme: working together to build a greener, fairer, independent Scotland

169. The First Minister's National Advisory Council on Women and Girls stated that this would "support the creation of a systemic intersectional gender architecture by placing the power to legislate and regulate around equality, including both anti-discrimination protections and the requirement to take steps to affirmatively advance equality." The First Minister's National Advisory Council on Women and Girls (2021) 2020 Report and Recommendations

170. Consultative Steering Group on the Scottish Parliament (1998) Shaping Scotland's Parliament

171. Scotland Act 1998, TSO (The Stationery Office), 1998

172. Human Rights Act 1998, TSO (The Stationery Office), 1998

173. Commissioner for Children and Young People (Scotland) Act 2003, TSO (The Stationery Office), 2003

174. Scottish Commission for Human Rights Act 2006, TSO (The Stationery Office), 2006

175. Equality Act 2006, TSO (The Stationery Office), 2006

176. Equality Act 2010, TSO (The Stationery Office), 2010

177. The Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012, TSO (The Stationery Office), 2012

178. Scottish Human Rights Commission (2013) SNAP 1 – Scotland's first National Human Rights Action Plan

179. Children and Young People (Scotland) Act 2014, TSO (The Stationery Office), 2014

180. Land Reform (Scotland) Act 2016, TSO (The Stationery Office), 2016

181. First Minister's National Advisory Council on Women and Girls (NACWG)

182. Scottish Government (2022) Fairer Scotland Duty: guidance for public bodies (About the Duty section)

183. Social Security (Scotland) Act 2018, TSO (The Stationery Office), 2018

184. Gender Representation on Public Boards (Scotland) Act 2018, TSO (The Stationery Office), 2018

185. First Minister's Advisory Group on Human Rights Leadership

186. Scottish Government Human Rights Leadership: national taskforce information page

187. First Minister's National Advisory Council on Women and Girls (NACWG)(2021) 2020 Report and Recommendations

188. Scottish Government (2021) National Taskforce for Human Rights: leadership report

189. Scottish Parliament United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill

190. First Minister's National Advisory Council on Women and Girls (2023) NACWG Phase Two: 2022-2026

191. Scottish Parliament Gender Recognition Reform (Scotland) Bill

192. UK Government Gender Recognition Reform (Scotland) Bill: statement from Alister Jack, 16 January 2023, and UK Government (2023) Statement of reasons related to the use of section 35 of the Scotland Act 1998

193. The design of the constitutional convention would have the opportunity to be informed by comprehensive assessments of the experiences of similar conventions and assemblies, for example as set out in Renwick, A. and Hazell, R. (2017) Designing a Constitutional Convention, University College London

194. Scotland's Climate Assembly (2021) Recommendations for Action

195. Harris, C (2014) The UK has much to learn from the Irish constitutional convention (London School of Economics)

196. Harris, C (2014) The UK has much to learn from the Irish constitutional convention (London School of Economics)

197. Harris, C (2014) The UK has much to learn from the Irish constitutional convention (London School of Economics)