Human rights in the UK: Universal Periodic Review, 2017 – Scottish Government position

Legal framework for protecting human rights and combating discrimination

Human Rights

Scotland benefits from a sophisticated and constitutionally-robust framework of laws designed to protect and secure human rights.

Human rights are devolved to the Scottish Parliament under the constitutional settlement which has applied in Scotland since 1999.

The Scotland Act 1998 ^[1] , in combination with the Human Rights Act ( HRA) 1998 ^[2] , ensures that both Scottish legislation and the actions of public bodies are subject to an overriding requirement to comply with core human rights standards.

Specifically, legislation passed by the Scottish Parliament is 'not law' to the extent that it is incompatible with rights derived from the European Convention on Human Rights ( ECHR). These 'Convention Rights' are formally defined in the HRA. Scottish legislation can be challenged in the courts and independent judges are able to rule on whether the legislation breaches relevant Convention Rights. Where a court finds that legislation is incompatible, the legislation can be struck down and ceases to have effect. The Scottish Ministers similarly have no power to act in a manner that is incompatible with Convention Rights. The HRA ensures that other public bodies are subject to a similar obligation. It is unlawful for a public body to act incompatibly with the Convention Rights. The actions of both Scottish Ministers and public bodies can be challenged in the Scottish courts.

In addition to these legally-enforceable guarantees, the Scottish Ministerial Code ^[3] explicitly reminds all Scottish Ministers of the overarching duty they have, as members of Scotland's Government, 'to comply with the law, including international law and treaty obligations.'

The Scottish Government has consistently opposed UK Government proposals to repeal the HRA, and to replace it with a 'British Bill of Rights'. That opposition has, inter alia, been made clear by the First Minister ^{[4] [5]} and in evidence submitted to the Scottish Parliament European and External Relations Committee ^{[6] [7]} . The Scottish Government's position reflects its desire to protect the human rights of individuals and communities from across the whole of society, not just in Scotland but in the United Kingdom as a whole.

The Scottish Government is also firmly committed to securing human rights in a global context and has explicitly criticised the damage done to international human rights mechanisms by the negative statements made in recent years by individuals representing, or closely associated with, the UK Government.

The Scottish Parliament has been similarly explicit in its opposition to attacks on the HRA. Support for existing human rights safeguards spans the political spectrum in Scotland and four out of the five political parties represented in the Scottish Parliament have made clear their support for the HRA. Any attempt by the UK Parliament to repeal or replace the HRA would require the legislative consent of the Scottish Parliament. The position of the Parliament has been definitively expressed in two motions, in 2014 and in 2017:

• on 11 November 2014 a motion in support of the HRA was passed by 100 votes to 10. ^[8]
• on 10 January 2017 a motion passed by 93 votes to 30 called on the UK Government to "give an understanding not to take, or propose, any action that weakens or undermines participation in... international human rights mechanisms, including in particular the Council of Europe and the European Convention of Human Rights ( EHCR), and records [the] opposition [of the Scottish Parliament] to any loss in Scotland of the human rights, equality, social protection and other safeguards and standards enshrined in EU law and set out in the EU Charter of Fundamental Rights." ^[9]

Equality

Scotland also benefits from sophisticated and effective legislation designed to secure equality and combat discrimination.

Equal opportunities in general are currently reserved to the UK Parliament, but with exceptions that provide scope for the Scottish Parliament to legislate in relation to the advancement of equality. Scottish Ministers have made direct use of devolved powers to make Regulations ^[10] which place specific equality duties on Scottish public authorities ^[11] . These are designed to support and enable the better performance of the Public Sector Equality Duty ( PSED) in section 149 of the Equality Act 2010. ^[12] Under the Regulations, there is a duty on Scottish Ministers to publish proposals to help public authorities in Scotland to make progress on equality.

The Scotland Act 2016 (passed by the UK Parliament) introduced further exceptions to the equal opportunities reservation in the Scotland Act 1998. These constitutional changes allow the Scottish Parliament some limited additional scope to legislate in relation to the functions of Scottish public authorities and cross-border public authorities.

The Scottish Government has committed to commencing the socio-economic duty set out in section 1 of the Equality Act 2010 ^[13] . This requires public authorities to have due regard, in the context of strategic decision-making, to the desirability of exercising functions in a way 'designed to reduce the inequalities of outcome which result from socio-economic disadvantage'.