National Taskforce for Human Rights Leadership: agenda and minutes - 10 December 2020

Attendees and apologies

Taskforce Attendees

• Christina McKelvie - Minister for Older People and Equalities
• Professor Alan Miller – Independent Co-Chair
• Professor Elisa Morgera – Co-Director of Strathclyde Centre for Environmental Law and Governance
• Councillor Kelly Parry – Convention of Scottish Local Authorities (COSLA)
• Judith Robertson – Chair, Scottish Human Rights Commission
• Mhairi Snowden - Co-ordinator, Human Rights Consortium Scotland
• Murray Hunt - Barrister specialising in Human Rights, and Legal Adviser to the All-Party Parliamentary Group on the Rule of Law
• Mirren Kelly – COSLA
• Claire Sweeney – Director for Place and Wellbeing, Public Health Scotland
• Alastair Pringle – Executive Director Corporate Delivery and Scotland, Equality and Human Rights Commission
• Fiona Killen – Solicitor, Law Society of Scotland

Guest Attendees

• Professor Nicole Busby – Academic Advisory Panel
• Kavita Chetty – Scottish Human Rights Commission

Scottish Government Attendees

• Elisabeth Campbell – Strategic Lead, Human Rights
• Cristina Dello Sterpaio – Human Rights Taskforce Team Leader
• Joseph McKeown – Secretariat to the National Taskforce
• Ciar Nixon – Secretariat to the National Taskforce
• Julia McCombie – Joint Bill Team Leader
• Alice Greig – Bill Team
• Afson Barekat – Head of Rights Branch, Scottish Government Legal Directorate (SGLD)
• Victoria Morton – SGLD
• Ciara McCafferty - Private Office

Apologies

• Nils Muižnieks – Former Commissioner for Human Rights, Council of Europe
• Michael Clancy – Law Society Scotland

Items and actions

Welcome and Pre-Cleared Papers

The Minister welcomed attendees and noted she was co-chairing on behalf of the Cabinet Secretary who was unable to attend due to commitments in the Scottish Parliament. The Minister thanked Professor Busby for attending to present her latest paper. The Minister also raised a number of points in relation to Human Rights Day:

• The Jimmy Reid Foundation published Update on Human Rights Protection in Scotland – Recommendations to Review and Revitalise Collective Action by Carole Ewart
• The Minister noted that she spoke about Human Rights Day and the work of the Taskforce in a parliamentary debate on 8 December.
• Noted the announcement by the UK Government of the Review of the Human Rights Act. The Minister set out the Scottish Government’s position of opposition to any diminution of the Human Rights Act, and that it will seek to have a full influence in that review.

It was noted that the Taskforce’s Action Log, Mid-Level Comms Plan and Minutes from the last meeting had been cleared in advance.

Public engagement

Professor Miller gave an update on the first meetings of the UNCRPD and UNCERD reference groups. He noted that meetings have been very positive, with a lot of enthusiasm and participation by those attending. There has also been similarities of outcomes, with the benefits of incorporation being recognised alongside the delivery challenge of attempting to incorporate multiple treaties at the same time. Incorporation of the treaties is one aspect of an effective framework alongside making the best use of resources and supporting changes in culture, building capacity and supporting more access to remedies and justice.

Professor Miller also noted that the Older Persons roundtable meeting was very informative, with welcome participation from Claudia Mailer, UN Expert on the rights of Older Persons.

Mhairi Snowden asked if there could be follow up to the Access to Justice Roundtable held on 7 December to continue gathering views from the experts who attended that meeting, as well as groups who had expressed an interest in attending but were not able to (such as Shelter). Professor Miller accepted this and the Programme Office will take this forward.

Political Engagement

Professor Miller gave an update of the Political engagement work, noting that he has now met with all parties at Holyrood. All parties have been supportive of the Taskforce’s work and they recognise the value in a stronger human rights framework in Scotland.

Update on HRCS/SHRC rights-holders participatory project

Mhairi Snowden gave an update and provided a paper on the Human Rights Consortium Scotland Public Engagement project stating that there has been huge enthusiasm for this work so far. The materials produced by the Scottish Human Rights Commission have been very accessible to a wide range of groups.

The Minister asked if there are any groups who could be better represented in the work. Mhairi suggested that they are looking at how best to reach gypsy and traveller communities, but overall Mhairi is satisfied that they have robustly engaged with many groups. The Minister noted that she engages with representatives of the Gypsy and Traveller Communities in her ministerial work, and would be happy to put Mhairi in touch with them. Mirren Kelly also offered to connect Mhairi to her contact in this community.

Academic Advisory Panel - Presentation from Professor Nicole Busby on incorporation of CRPD/CERD, rights of LGBTI communities and rights of older persons

Professor Busby led a presentation and discussion on her paper, noting key conclusions made by the authors in the paper: That that the potential interplay between ICESCR and the CRC, CEDAW, CRPD and CERD is essential for full realisation of economic, social and cultural rights; that the ‘full text’ approach is favoured by the authors because they feel that to pick and choose from their provisions risks weakening the frameworks provided by the Conventions’ full text; and that the authors feel that a duty to comply would be an essential requirement for the framework as the duty of due regard alone has proven untenable in the pursuit of progressing and activating people’s rights.

The Minister thanked Professor Busby for her presentation. She noted that the ‘full text’ approach outlined in the paper should be considered carefully given the challenges of navigating competence and delivering incorporation of all three treaties at the same time.  That approach would be considered in light of the recent discussion Taskforce members had with the UNCRC Bill team about their maximalist approach. The Taskforce should consider what is best for our bill and the approach to incorporation is something to include in the Scottish Government consultation on Bill policy, in due course.

The Minister also noted that the Taskforce has lost a lot of time and all flexibility in its timeline due to the impact of the COVID-19 pandemic. The Taskforce must consider the impact of incorporation of UNCERD and UNCRPD on the planned introduction date. There are some complex issues relating to these three treaties that need careful consideration that will take time to resolve and get right.

Alasdair Pringle asked for Professor Busby’s views on whether incorporation would have a beneficial impact on duties. Professor Busby replied that existing equality duties are not the most effective and require a more enforceable legislative approach to change from formal to substantive equality, with incorporation being only one aspect of a range of things that would need to be done to achieve this. The Group also discussed how incorporation would interact with the ongoing public debates on the rights of transgender people.

Mhairi Snowden asked if incorporation of CERD would have any impact on people with a legal status that gave no recourse to public funds. Professor Busby’s view is that it could give clarity on potential challenges to that issue, but this could already happen under existing laws.

Judith Robertson emphasised that incorporation is an important step to help people be more aware of their rights in their daily lives, and allow push back on duty bearers to fulfil their requirements. The impact of Brexit, Covid-19 and the recession create an urgency to this work.

Murray Hunt asked for Professor Busby’s view on whether dual duties can coexist or if one must supersede the other. Professor Busby advised that in her view, both are needed to ensure that there is a proactive approach used in decision making at the start of policy processes (enabled by the duty to have due regard), and a reflective approach that must be used when something has been highlighted as requiring correction (enabled by duty to comply).

Kavita Chetty noted that, drawing from the views of stakeholders they have engaged with, incorporation of all treaties would help ensure that the framework takes an intersectional view of human rights issues and identities, and avoids creating a hierarchy of competing interests and rights. However, she recognised the immense challenge of legislating for this. Mirren Kelly also noted that the sheer volume of legislation this would require would be a significant challenge to complete in current time-scales, and asked for Professor Busby’s view on whether ICESCR rights incorporated on their own would be a sufficient first step. Professor Busby recognised that this is a challenge to deliver but her view is that ICESCR rights alone would risk entrenching inequalities within the existing status quo that would be harder to rectify later.

Judith asked for Professor Busby’s view on whether making access to structural remedies available in the ICESCR process would be sufficient to build in cover for other treaties further down the line. Professor Busby believed it would make a difference, but noted that opening up access to remedies is, in itself, a very significant step, particularly to shift the legal world in a positive direction towards it.

The Minister raised the independent review of Scotland’s mental health legislation currently underway and advised the Taskforce to how this review links in with its work.

Update on the findings from the Bonavero Institute

Professor Miller provided a shorter update on this paper as he had not yet received it from his colleagues at the Bonavero Institute. They intend to look at signing off paper this week to share next week. The Co-Chairs agreed to allocate more time to discuss the next agenda item.

Update on Decision Making Timeline and Work Plan

Professor Miller noted that he had held individual discussions with Taskforce members, noting where their expertise best lay within the work plan. He noted that subgroups would be established to work together on key areas before bringing their conclusions to the Working Group, which would then inform decision making at Taskforce meetings.

Mhairi Snowden noted that she viewed this as a practical step forward, whilst noting the sense of urgency in getting diary dates confirmed. She asked that evidence and key themes from roundtables and stakeholder engagement be compiled, in order to inform subsequent discussions.

Kavita Chetty welcomed the plan making the practical point of recognising the breadth of work required, and noted she would be very keen to see meetings scheduled to ensure the plan worked on paper. This was noted and the Programme Office will share a note of planned meetings.

There was broad agreement on the purpose and direction of the sub-groups. Programme Office noted that they would support each subgroup to meet, inform discussions with relevant materials, and track the progress of each group to report to Taskforce meetings as a standing item. The Programme Office will begin contacting members to begin setting up initial meetings of subgroups.

Any Other Business

The next Taskforce meeting will take place on 13 January 2021

Taskforce members took part in a group photo for sharing as part of the Scottish Government’s marking of Human Rights Day. The Minister also noted that the First Minister would be circulating a video message on social media highlighting the Scottish Government’s ongoing work on human rights.

Mhairi Snowden mentioned that Dr Katie Boyle, member of the Academic Advisory Panel, has circulated a paper on the independent review of human rights that includes important findings on access to justice that the Taskforce may wish to respond to. The Programme Office will discuss this with relevant officials and report back to the group on this in due course.