Universal periodic review of human rights in the United Kingdom 2017: response to recommendations

Protecting And Promoting Human Rights In Scotland

Legal framework

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

The Scotland Act 1998, in combination with the Human Rights Act 1998 ( HRA), 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 the 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 the Scottish Ministers and public bodies can be challenged in the Scottish courts.

In addition to these legally-enforceable guarantees, the Scottish Ministerial Code 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 role of the Scottish Parliament

Following the Scottish Parliament election in May 2016, the Scottish Parliament established an Equalities and Human Rights Committee ( EHRiC).

On 20 June 2017 the Commission on Parliamentary Reform published its Report on the Scottish Parliament. ^[4] Its recommendations include:

“We refer the proposals raised with us on the Parliament’s role as a human rights guarantor to the Equalities and Human Rights Committee to inform its inquiry work on this matter. We recognise the importance of the proposals made to us and consider that some of our other recommendations may also promote the delivery of a stronger human rights role for the Scottish Parliament.”

The Scottish Government strongly supports efforts to further embed human rights within the work of the Parliament and will continue to engage with the EHRiC.

Human rights institutions in Scotland

The Scottish Human Rights Commission ( SHRC) ^[5] was established by the Scottish Commission for Human Rights Act 2006. ^[6] It has a general duty to promote human rights and encourage best practice in relation to human rights in Scotland. 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.

The Equality and Human Rights Commission ( EHRC) ^[7] is a statutory non-departmental public body, established by the Equality Act 2006. ^[8] It is responsible for promoting equality and diversity, enforcing laws and promoting mutual respect including good relations. It also works to promote and protect human rights, by encouraging good practice. The EHRC’s remit extends across Great Britain. Relations between the two Commissions are regulated by a Memorandum of Understanding. ^[9] The EHRC has the power to assist individuals who take legal action and may intervene or instigate legal action itself.

The Children and Young People’s Commissioner Scotland ( CYPCS) ^[10] was established by the Commissioner for Children and Young People (Scotland) Act 2003. ^[11] The Commissioner’s role is to promote understanding of, and ensure respect for, children and young people’s rights in Scotland.

Engagement with civil society

The Scottish Government is committed to working with the whole of Scottish society to deliver a shared vision of a Scotland where everyone can live a life of human dignity. Scotland is proud of the close and constructive working relationship which exists between state institutions and civil society. A range of collaborative processes support progress on human rights and equality.

In relation to international human rights treaty reporting and implementation, the Scottish Government held meetings with civil society organisations before and after reviews under ICESCR, CRC, and the Universal Periodic Review. These were an opportunity for the Scottish Government to share information on the treaty monitoring process, and for stakeholders to provide insight into the particularly Scottish dimension to the human rights issues of interest to the respective United Nations bodies.

Policy context

The Scottish Government is committed to respecting, protecting and implementing human rights for everyone in Scotland, and to embedding equality, dignity and respect in everything it does.

On 5 September 2017 A Nation with Ambition: the Government’s Programme for Scotland 2017-18 (2017-18 PfG) ^[12] was published. It contains specific commitments to:

• oppose the proposed removal of the European Charter of Fundamental Rights from our laws contained in the EU Withdrawal Bill and oppose any attempt by the UK Government to undermine the Human Rights Act 1998
• ensure existing and relevant future human rights protections provided under EU law are maintained following Brexit
• consider how Scotland can go further and establish an expert advisory group to lead a participatory process to make recommendations on how Scotland can continue to lead by example in human rights, including economic, social, cultural and environmental rights
• undertake a comprehensive audit on the most effective and practical way to further embed the principles of the UN Convention on the Rights of the Child into policy and legislation, including the option of full incorporation into domestic law.