UN Human Rights Council Universal Periodic Review - fourth cycle recommendations: Scottish Government response

1. Human Rights Legal Framework

A) Incorporation of International Obligations

Recommendation(s) and Responses

Relevant section(s) in the October 2022 UPR Position Statement

• 1(A) – Scotland’s Human Rights Bill
• 1(B) – Incorporation of the UN Convention on the Rights of the Child

Recent Progress and Next Steps

Scottish Human Rights Bill

The Scottish Government has consulted on proposals for a new Scottish Human Rights Bill^[11], following recommendations made by the National Taskforce for Human Rights Leadership^[12].

The consultation ran from 15 June to 5 October 2023 and nearly 400 consultation responses were received. The Scottish Government remains committed to introducing the proposed bill during the current (2021 to 2026) parliamentary session.

The Bill will incorporate (within the limits of devolved competence) four of the nine core UN human rights treaties^[13] into Scots law. The UK has ratified seven of these core treaties^[14]. Alongside the UNCRC Bill (see below), this will mean, in due course, that five of the core UN treaties have direct domestic effect in Scotland. The Human Rights Act 1998 and the Scotland 1998 already give effect to the key civil and political rights set out in the European Convention on Human Rights. These align closely with the rights set out in two further core UN treaties – the International Covenant on Civil and Political Rights^[15] and the UN Convention against Torture^[16].

The treaties which will be incorporated by the Bill are:

• the International Covenant on Economic, Social and Cultural Rights (“ICESCR”)^[17],
• the Convention on the Elimination of Discrimination Against Women (“CEDAW”)^[18],
• the International Convention on the Elimination of All Forms of Racial Discrimination (“ICERD”)^[19], and
• the Convention on the Rights of Persons with Disabilities (“CRPD”)^[20].

UN Convention on the Rights of the Child (“UNCRC”)

The Scottish Government remains committed to ensuring that Scotland is the first UK nation to incorporate the UNCRC into domestic law.

The intent behind the UNCRC (Incorporation) (Scotland) Bill^[21] is to deliver a proactive culture of everyday accountability for children’s rights across public services in Scotland. The Bill reflects our overall National Performance Framework commitments to respect, protect and fulfil human rights^[22] and to ensure that children in Scotland grow up loved, safe and respected and realise their full potential^[23].

The Bill was passed by the Scottish Parliament on 16 March 2021^[24], but was subsequently found by the UK Supreme Court (“UKSC”) to contain provisions that were outwith legislative competence^[25]. In particular, the judgment made clear that the Bill cannot require public authorities to act compatibly with the UNCRC when they are delivering functions under powers contained in a UK Act, if the provisions of the UK Act require the public authority to act incompatibly. That applies even where the subject matter of the UK Act is now within devolved competence.

The Scottish Parliament reconsidered the Bill, in light of the UKSC judgment, and voted unanimously (on 7 December 2023) to pass an amended version of the Bill^[26]. Subject to Royal Assent it is hoped to commence the Bill by the middle of 2024.

The effect of the amendments made to the Bill reflect the Scottish Government’s assessment that the most effective coverage for the compatibility duty in the Bill is for it to apply only when public authorities are delivering functions under powers conferred by an Act of the Scottish Parliament. Adopting this approach resolves the issues identified in the UKSC judgment.

Even with the more limited coverage which will result, we remain confident that the Bill will deliver important new protection for children’s rights. A review of UK legislation which applies to devolved areas will be undertaken to identify provisions which impact on children's rights to the extent that Ministers consider that it may be worth legislating to bring those provisions within the scope of the compatibility duty. A review of this kind will take time to complete. Any resulting new legislation would need to be brought forward in a way that manages pressure on the overall legislative business of the Parliament.

Relevant National Outcomes

• We respect, protect and fulfil human rights and live free from discrimination.
• We grow up loved, safe and respected so that we realise our full potential.

Relevant Sustainable Development Goals

• 16 - Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels.

B) European Convention on Human Rights and Human Rights Act 1998

Recommendation(s) and Responses

Relevant section(s) of the October 2022 UPR Position Statement

• 1(D) – Human Rights Act 1998

Recent Progress and Next Steps

Rights derived directly from the ECHR (“the Convention rights”) are already given legal effect in Scotland by means of the Human Rights Act 1998^[31] and the Scotland Act 1998^[32]. Legislation passed by the Scottish Parliament is not law to the extent that it is incompatible with the Convention rights. The Scottish Ministers similarly have no power to act incompatibly with those same rights. It is unlawful for public authorities to act in way that is incompatible with the Convention rights (except in limited circumstances).

The Scottish Government and the Scottish Parliament have reiterated their unequivocal opposition to attempts by the UK Government to repeal and/or replace the Human Rights Act 1998. The Convention rights established by the Human Rights Act are also embedded in the Scotland Act 1998 and are fundamental to the Scottish Parliament and to Scotland’s devolution settlement^[33]. Proposals put forward by the UK Government in June 2022 in its Bill of Rights Bill represented a clear and present danger to fundamental rights and freedoms in Scotland and across the UK as whole.

The Bill of Rights Bill encountered significant cross-party opposition in the UK Parliament and failed to make progress beyond First Reading in the House of Commons. It was subsequently withdrawn in June 2023 and no longer forms part of the UK Government’s legislative programme.

Provisions which have a similar legal effect (in disapplying section 3 of the Human Rights Act) have, however, appeared in other UK Government legislation, notably in the Illegal Migration Act 2023. The Scottish Government has made clear its opposition to such measures^[34]. The Scottish Government strongly opposes suggestions made by some members of the UK Government that the UK might seek to denounce its current obligations and withdraw from being a state party to the ECHR.

The Scottish Government will continue to strongly oppose any proposals which would have the effect of altering or undermining the legal and constitutional protections which have so successfully safeguarded and advanced human rights throughout the UK over the last two decades.

The Scottish Government will continue to work closely with other Devolved Administrations, the National Human Rights Institutions, civil society campaigners and others to monitor developments at Westminster, defend the Human Rights Act, ensure continued UK membership of the ECHR, and press the UK Government to comply in full with the UK’s international obligations. This includes its obligations as a state party to the ECHR.

Relevant National Outcomes

• We respect, protect and fulfil human rights and live free from discrimination.
• We live in communities that are inclusive, empowered, resilient and safe.
• We are open, connected and make a positive contribution internationally.

Relevant Sustainable Development Goals

• 16 - Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels.

C) National Human Rights Institutions

Recommendation(s) and Responses

Relevant section(s) of the October 2022 UPR Position Statement

• 1(E) – Scottish Human Rights Commission

Recent Progress and Next Steps

The Scottish Government’s proposals for a new Scottish Human Rights Bill include measures to strengthen the role of the SHRC so that it can continue to play a key role in ensuring that human rights are respected, protecting and fulfilled in Scotland Extensive consultation has taken place with the Scottish Human Rights Commission (“SHRC”) and with the Scottish Parliament Corporate Body, which sponsors the work of the Commission.

In particular, the public consultation on the Bill included proposals to extend the powers of the SHRC, for example:

• to bring or intervene in civil proceedings under the Bill; and
• an investigatory power which allows for accountability for systemic issues relating to the rights in the Bill (in respect of civil matters).

The Scottish Government will also consider mirroring any new powers for the SHRC in the remit of the Children and Young People’s Commissioner Scotland (“CYPCS”). This recognises that the rights to be set out in the proposed Scottish Human Rights Bill will also apply to children.

Relevant National Outcomes

• We respect, protect and fulfil human rights and live free from discrimination.
• We grow up loved, safe and respected so that we realise our full potential.

Relevant Sustainable Development Goals

• 16 - Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels.

D) Treaty Monitoring and Implementation

Recommendation(s) and Responses

Relevant section(s) of the October 2022 UPR Position Statement

N/A

Recent Progress and Next Steps

The Scottish Government welcomes international scrutiny of Scotland’s human rights record and is committed to engaging with the United Nations and other international human rights monitoring mechanisms.

The Scottish Government contributes to UK-wide reporting activity in order to ensure that UK reports accurately reflect implementation of human rights treaty obligations in devolved areas. Separate Scottish position statements are also published, where appropriate. Whilst these do not form part of formal international reporting mechanisms, they play an important role in supporting effective scrutiny of devolved performance carried out by the Scottish Parliament. Scottish position statements also serve to ensure that civil society partners and the general public are kept properly informed. The two most recent position statements relate to the UPR^[35] (published in October 2022) and to compliance with ICESCR^[36] (published in November 2022).

In June 2022, the UN Committee against Torture published its List of Issues in respect of UK obligations under UNCAT. It did so in advance of the 7th periodic report from the UK. In December 2022, the Scottish Government provided a response to the List of Issues which was then reflected in the UK state party report published in July 2023^[37].

The Scottish Government also continues to contribute to the UK reports to the International Labour Organisation (“ILO”). In 2023, the Scottish Government contributed to UK state party responses under the following ILO Conventions: C029; P029; C081; C105; C124; C138; C182.

The Scottish Government is participating actively in the 7^th periodic review of the UK’s overall performance against ICESCR obligations. In March 2023 national human rights institutions and civil society gave oral and written evidence to the UN Committee on Economic Social and Cultural Rights. The Committee has now published a List of Issues which will form the basis for an interactive dialogue between the Committee and representatives of the UK, Scottish and other UK governments. The UK is expected to respond to the List of Issues in March 2024 with an interactive dialogue then taking place in Geneva in either 2024 or 2025.

The 9^th periodic review of performance under the International Covenant on Civil and Political Rights (“ICCPR”) is currently in progress and the interactive dialogue is scheduled to take place in March 2024. Scottish Government officials will participate in the UK delegation and present information in relation to devolved policies in Scotland.

Relevant National Outcomes

• We respect, protect and fulfil human rights and live free from discrimination.
• We are open, connected and make a positive contribution internationally.

Relevant Sustainable Development Goals

• 16 - Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels.

E) Ratifications, Reservations and Declarations

Recommendation(s) and Responses

Note: The Scottish Government welcomes all of the above recommendations, the UK Government, as the State Party, holds responsibility for most aspects of international relations, including the ratification of international treaties and decisions in relation to reservations and interpretive declarations.. As a result, neither the Scottish Government nor the Scottish Parliament are currently in a position to implement these recommendations.

The Scottish Government has publicly welcomed the availability of communications (i.e. complaint and inquiry) mechanisms in principle. The UK is currently a party to the relevant mechanisms for CEDAW and CRPD, but not ICCPR, ICESCR and CRC.

Relevant section(s) of the October 2022 UPR Position Statement

• 1C - Ratification of the Istanbul Convention

Recent Progress and Next Steps

CEDAW

The Scottish Government is fully committed to implementing its obligations under the Convention on the Elimination of All Forms of Discrimination against Women (“CEDAW”). CEDAW’s requirements will be reflected, within the limits of devolved competence, in the proposed Scottish Human Rights Bill which will be introduced in the current parliamentary session.

Istanbul Convention

The Scottish Government considers that the UK’s reservation in relation to Article 59 is contrary to the spirit and substance of the Istanbul Convention and conflicts with the obligation on states parties to implement the Convention without discrimination on any grounds. Ministers have written to the UK Government to ask it to withdraw the UK’s reservation on Article 59^[43].

The Scottish Government contributed to the UK baseline evaluation report^[44] submitted to the Council of Europe Group of Experts on Action against Violence against Women and Domestic Violence (“GREVIO”) which was published in July 2023. GREVIO is expected to undertake an initial visit to the UK in January 2024 to evaluate baseline performance.

Gaelic and Scots - Education

The Scottish Government is committed to supporting and promoting Scotland’s intangible cultural heritage, including the Gaelic and Scots languages. Actions being taken are wide ranging and will impact all levels of the language communities. A Scottish Government consultation on the Future of Gaelic and Scots ran from August to December 2022 ^[45].

A new Scottish Languages Bill^[46] will be introduced in the Scottish Parliament during the current parliamentary session. It will address aspects such as legal recognition for Gaelic and Scots as official languages of Scotland; a new strategic approach to Gaelic-medium Education; measures to provide protection to key Gaelic communities, and action to provide further support to the Scots language.

The Scottish Government is working with parents and Local Authorities to increase the areas and circumstances in which young people have the choice to access Gaelic education. The capital budget to support Gaelic education has increased to £4 million and the Scottish Government has maintained the grant (total value £4.82 million) which is available to local authorities to help deliver expansion and new provision. In addition, the Scottish Government is working with the General Teaching Council Scotland, Education Scotland, the Scottish Qualification Authority and St òrlann (the Gaelic resources body) to ensure practitioners are supported and educational materials are available to the sector.

Support for Scots language bodies continues to expand and the available budget was doubled, to circa £520,000, in 2022/23. This has allowed the development of Scots educational support and resources, through bodies such as the Scots Language Centre and Scots Hoose^[47], which allow teachers and young people to access the learning they want.

Gaelic and Scots both featured in the 2022 Census and the resulting information will support the identification and targeting of resource to help both languages. Further information is available in:

• Gaelic Language (Scotland) Act 2005 (legislation.gov.uk)
• The National Gaelic Language Plan – Bòrd na Gàidhlig (gaidhlig.scot)
• Gaelic language plan 2022 to 2027 - gov.scot (www.gov.scot)
• Scots language policy: English version - gov.scot (www.gov.scot)

Relevant National Outcomes

• We grow up loved, safe and respected so that we realise our full potential.
• We respect, protect and fulfil human rights and live free from discrimination.
• We are open, connected and make a positive contribution internationally.

Relevant Sustainable Development Goals

• 16 - Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels.