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

2. Implementing Human Rights in Scotland

“ We can build a better society, based on respecting rights, recognising dignity and encouraging ,and crucially, enabling each other’s potential.”

First Minister Nicola Sturgeon
Jimmy Reid memorial lecture, 24 November 2015

2.1 Implementation of international human rights obligations

UPR recommendations ^[24]

• Respect the principles and purposes of the Charter of the United Nations
• Ensure that all laws and policies adopted are in conformity with international human rights laws and standards
• Continue open and inclusive public debates on the most effective domestic implementation of international and regional human rights standards, with full account of universally guaranteed rights and freedoms
• Further implement the International Covenant on the Elimination of All Forms of Racial Discrimination in domestic law so that its principles and provisions are directly and fully applicable
• Integrate fully the principles and provisions of the Convention on the Rights of the Child into domestic law and ensure its implementation across national and local governments, with effective coordination and monitoring structures

The Scottish Government is committed to creating a modern, inclusive Scotland which protects, respects and realises internationally recognised human rights. Everyone in Scotland has fundamental human rights guaranteed by law and set out in international treaties developed by the United Nations and other international organisations. The 2017-18 PfG sets out an ambitious roadmap for long-term progressive change designed to make these human rights real for everyone in Scotland; to build a country where every person can live with dignity and respect; and to embed human rights, equality and fairness at the heart of everything the Scottish Government does.

As well as the overarching provisions of the Scotland Act 1998 and the Human Rights Act 1998 concerning ECHR rights, specific provisions in recent Scottish legislation require the Scottish Ministers to have regard to the economic, social and cultural rights contained in ICESCR for example as a result of provisions in the Community Empowerment (Scotland) Act 2015 ^[25] and the Land Reform (Scotland) Act 2016. ^[26]

Legislation currently in the Scottish Parliament tackles child poverty, domestic abuse and ensures gender balance on public boards. The Scottish Government is taking forward its Fairer Scotland Action Plan and Scotland’s new social security system will put dignity and respect at its heart. A Fairer Scotland for Disabled People was consciously framed as a delivery plan for the CRPD, and implementation of Scotland’s Race Equality Framework is ongoing. The Scottish Government has pledged to legislate to bring the minimum age of criminal responsibility into line with international standards; will support a proposed member’s Bill in the Scottish Parliament to introduce a legislative ban on the physical punishment of children; is acting to right the historic wrong suffered by gay, lesbian and bisexual people convicted under outdated laws; and is consulting on reforming the Gender Recognition Act 2004 in line with international best practice for transgender people.

2.2 UK withdrawal from the European Union

UPR recommendations ^[27]

• In view of the process of leaving the European Union, ensure that any new legislation aims at strengthening human rights in the entire jurisdictions of the country
• In the context of withdrawal from the EU, ensure that human rights achievements and protections in the acquis are maintained; and ensure rights and status of EU citizens in the UK

Membership of the European Union ( EU) brings positive social and economic benefits. These include important fundamental rights, equality guarantees and social protections. The Scottish Government is opposed to proposals contained in the EU Withdrawal Bill which will mean that the EU Charter of Fundamental Rights ceases to be part of domestic law.

Scotland voted clearly and decisively for the UK to remain in the EU (62% to 38%). There was a majority for remaining within the EU in all 59 of Scotland’s Westminster parliamentary constituencies.

The Scottish Government continues to believe that EU membership is the best option for Scotland. On 20 December 2016, the Scottish Government published Scotland’s Place in Europe, ^[28] which contains proposals for mitigating the impact on Scotland of the UK’s exit from the EU.

The Scottish Government believes the least damaging option is for the whole of the UK to remain in the European Single Market and Customs Union.

The Scottish Government is clear that ending free movement of people between the UK and the EU will have a negative impact on individuals, families and our wider economy and society as a whole. Ending free movement will mean a significant reduction in the rights and benefits that EU citizens in the UK, and UK citizens in EU countries, currently enjoy. The Scottish Government has repeatedly called for assurances that all EU citizens should have their rights protected in the place that they choose to call home. On 26 June, the UK Government published Safeguarding the position of EU citizens living in the UK and UK nationals living in the EU. The published Scottish Government response, Free Movement - Citizens’ Rights, ^[29] outlines the areas in which the UK Government should seek to provide greater clarity both for EU citizens here, and for UK citizens in EU countries.

On social protection, Scotland’s Place in Europe makes clear that Scotland’s interests include “ensuring the continued protection of workers’ rights and maintaining social, environmental and human rights advances.”

In a speech given on 25 July 2016, Scotland’s First Minister said:

“I genuinely fear that a UK government outside the single market will seek economic competitiveness through de-regulation and a race to the bottom. That would be devastating for the workers’ rights and protections that we have come to take for granted.”

On 27 June 2017, the First Minister told the Scottish Parliament that the Scottish Government would come back to Parliament to set out its judgement on the best way forward, including its view on the precise timescale for offering people a choice over the country’s future, at the end of the period of negotiation with the EU, when the terms of Brexit will be clearer.

2.3 “British Bill of Rights”

UPR recommendations ^[30]

• Reconsider plans to repeal the Human Rights Act 1998 ( HRA) and ensure that there is no weakening of human rights protections or impact on access to remedies. Maintain the legal effects, scope and effectiveness of the HRA
• Ensure the inclusion of all stakeholders in the drafting and adoption of the “British Bill of Rights”, in particular representatives of the poor, minorities and vulnerable groups

The Scottish Government has consistently opposed the UK Government’s 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 and in evidence submitted to the Scottish Parliament European and External Relations Committee. It is reiterated in the 2017-18 PfG.

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.

Any attempt by the UK Parliament to repeal or replace the HRA would be likely to require the legislative consent of the Scottish Parliament, which has been 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. 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.
• 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 on Human Rights ( ECHR), 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.”

Following the 2017 general election the UK Government stated that the UK will remain party to the ECHR for the duration of the current Westminster Parliament (i.e. until 2022 unless an earlier election is held). However, it has pledged to give further consideration to the human rights legal framework when the process of leaving the European Union concludes.