National Taskforce for Human Rights Leadership: agenda and minutes - 10 February 2021

Attendees and apologies

Taskforce Attendees:

• Professor Alan Miller – Independent Co-Chair 
• Shirley Ann Somerville – Co-Chair, Cabinet Secretary for Social Security and Older People
• Christina McKelvie - Minister for Older People and Equalities
• 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 
• Alastair Pringle – Equality and Human Rights Commission 

Guest Attendees: 

• Kavita Chetty - Scottish Human Rights Commission
• MIrren Kelly - COSLA

Scottish Government Attendees: 

• Madhu Malhotra – Director for Equality, Inclusion and Human Rights
• Elisabeth Campbell – Strategic Lead, Human Rights
• Cristina Dello Sterpaio – Human Rights Taskforce Team Leader
• Joseph McKeown – Secretariat to the National Taskforce
• Fraser Meechan - Secretariat to the National Taskforce
• Ciar Nixon – Secretariat to the National Taskforce
• Gill McCrum – Bill Team 
• Daniel Garraghan – Bill Team
• Afson Barekat – Head of Rights Branch, Scottish Government Legal Directorate (SGLD)
• Lauren Jefferies – Private Office

Apologies were noted from:

• Fiona Killen – Solicitor, Law Society of Scotland 
• Nils Muižnieks – Regional Director for Europe, Amnesty International
   

Items and actions

Welcome and pre-cleared papers

The Cabinet Secretary welcomed attendees to the tenth meeting of the Taskforce, noting apologies from Fiona Killen and Nils Muižnieks. She noted her appreciation of the difficulties of working from home, and thanked attendees for their efforts in attending meetings. 

The Cabinet Secretary then thanked attendees for clearing the previous meeting’s minutes, Action Log, and Comms Engagement Plan. 

The Cabinet Secretary noted awareness that a draft report had been produced by the Taskforce, to be discussed at the Working Group meeting on February 11th. 

rofessor Miller echoed the Cabinet Secretary’s welcomes and thanks.

Update on public and political engagement 

Professor Miller briefly outlined the engagements that had taken place since the previous Taskforce meeting, including the final Civil Society Reference Group, at which guidance that could accompany the framework was discussed. He also noted the conclusion of the All Our Rights in Law project, and noted that the outcomes of that would feed into discussions. In addition, he noted the carrying out of the second LGBTI forum, at which participants endorsed the idea of including an equality clause, and his meeting with the Accounts Commission chair of the Strategic Scrutiny Group, in which they outlined ways in which scrutiny bodies could engage with the framework’s implementation. 

Professor Miller briefly noted the political engagement that he had carried out, summarising his meeting with Joanna Cherry MP, noting that she had highlighted the interest that Harriet Harman would have in the process. He also noted his positive engagement with David Lammy MP. Professor Miller went on to summarise his meeting with EU Fundamental Rights Agency Director Michael O’Flaherty, noting that he was also keen to explore further engagement with Scotland’s progress.

Professor Miller added that he was pleased with the depth of public engagement, providing such a solid evidence base, as well as noting the increased ambition that has risen as a result of the COVID-19 pandemic. 

He ended the update by thanking Taskforce members for all their work in ensuring such fruitful engagement, which was echoed by the Cabinet Secretary. 

Update on HRCS/SHRC rights-holders participatory project and Together Work 

The Cabinet Secretary invited Mhairi Snowden to provide an update on her work with rights-holders participatory process. 

Mhairi noted that she had given a similar update to the Working Group previously, and summarised her key points regarding the extent of the engagement carried out. She noted the great volume of time and energy that had been invested by stakeholders, noting in particular the breadth of input from children and young people, adding that this engagement and evidence base could be built on productively in future work. She noted that a draft of her report had been shared with attendees, which would be completed in due course, with quotations from rights-holders to be added, in order to add texture to the evidence base. 

Mhairi noted engagement in particular with black and ethnic minority youth groups, and the positive direction that this was taking, and noted the quality of input, and that this informed her view that future engagement should take a proactive approach towards engaging with children and young people. 

Mhairi highlighted the key messages noted in her report. In particular, she noted the broad support for the framework, and noted the wish to make rights tangible, and to make real difference to people’s lives. She highlighted the vital importance of people being aware of, and understanding, their rights – she linked this to the need for accessible language, which can be easily understood, and that relevant information regarding rights is in places where it can help those most in need.

In addition, Mhairi noted people’s desire for the framework to be something ‘with teeth’, empowering individuals to seek out enforcement of rights, and remedies that make real practical difference to everyday life. This was tied to a hope that the framework wouldn’t rely on individuals defending their own rights, and that ideally systemic change could be carried out at a higher level. 

Mhairi concluded her summary by noting that all participants in public engagement felt that a large-scale public awareness campaign would be needed when the framework was implemented, inspired by the level of information given in the Government’s COVID response. 

Judith Robertson added that she felt the lessons learnt from Mhairi’s work give a direct and explicit instruction to ensure engagement and information is included in the Taskforce’s work going forward, and that the comments and narrative highlighted in public engagement inform the work. 

Mhairi again noted the importance of ensuring that recommendations from rights-holders are reflected in the framework, to underline the key perspectives given from rights-holders, particularly in regards to remedy, accessibility, and engagement. 

Alastair Pringle noted the importance of embedding the concept of dignity in the framework, as well as examples of co-production of policy, and noted the potential of embedding both in the framework. In addition, he noted existing models to build on of rights awareness and information, engaging both with awareness organisations and rights-holders. He noted perceived gaps in the advice sector, and that he felt the framework should not just be about producing information; that it also has to reach out to those to whom it will make the most difference.

The Cabinet Secretary agreed that there were lessons that could be learnt from Social Security, both in what has been seen to work well, and what learning could be built upon. She also highlighted the importance of continued publicity, rather than a one-off publicity awareness campaign. She noted the importance of both sharing the information, as well as simple-to-follow directions in the next steps on taking action. 

Councillor Parry noted that this approach could be useful in a lot of areas in Local Government, and noted her hope to share this across COSLA, particularly the Children and Young People Board, inviting Mhairi to continue this conversation and engagement in future. Mhairi agreed, and noted the key importance in all work of continued engagement, rather than one-off consultations.
    
Update on Sub Groups

Professor Miller thanked all attendees for their efforts, particularly in carrying out two meetings of each sub-group on Rights, Duties, and Implementation, as well as the four Working Group meetings to discuss findings.

He noted broad agreement in what Rights and Duties should be included in the framework, which he noted he hoped to include in the working draft report, and that he hoped to incorporate findings from the final Implementation meeting, in addition to Mhairi’s report. 

He noted that the Working Group meeting scheduled for Feb 11th would give the Working Group members a chance to discuss the draft report, and further develop and revise the report, to be circulated before the February 18th WG meeting, in order to hopefully come to an agreement in principle at the Taskforce meeting on February 24th. 

Professor Miller discussed the unfinished business of the Taskforce’s work, and mentioned that work had begun in identifying these areas, and discussions were being had on approaches on how best to identify and inform future ongoing collaborative work. 

Mhairi asked Professor Miller for reflections on unfinished business, particularly with regards to routes to remedy, and how this could be reflected in the final report. Professor Miller noted that he hopes to include this in the report, and that there is space in the report left in order to further develop these findings.

Mhairi also asked about repeating findings from FMAG, particularly the rights to a healthy environment, and how that would be carried out. Professor Miller noted that he hopes that the Taskforce’s report would build on FMAG’s findings in a positive way, noting that the findings affirm the ideas of FMAG, as well as adding more evidence. 

Judith noted that the Taskforce was building on the work of FMAG, engagement, and discussions, and that there was a great direction of travel being strengthened by the evidence base of the Taskforce’s work, and noted the option of really underlining the human rights based approach underpinning all future work. 

Judith noted that with the great extent of conversations that have been had, there could be benefit of bringing the process and discussions into one conversation to have a focused discussion in order to inform SG on options on what next steps could be, where the gaps lay, what best stakeholder to include, and lessons learned.

The Cabinet Secretary reassured Judith that she was having conversations with regards to arranging such meetings going forward, to continue involvement in the process, and that SG would be in touch in due course with arrangements, according to the Work Plan. 

Discussion to agree final decisions on ICESCR Rights for inclusion in the Framework

The Cabinet Secretary noted that the First Minister’s Advisory Group report recommended that the Human Rights Bill “provide further rights drawn from UN human rights treaties ratified by the UK but not yet incorporated, including economic, social and cultural rights”.

She acknowledged that the Bill Team had also undertaken an extensive cross-government exercise in relation to economic, social and cultural rights, to understand more about the considerations relating to incorporating economic, social and cultural rights into domestic legislation. 

She noted that the Government is fully committed to the principle of including economic, social and cultural rights in domestic legislation, but it is clear that there are a number of complex matters needing resolved, listing the example of further work being required on how the concepts of ‘progressive realisation’ and the ‘minimum core’ ought to be reflected in the Bill.

She added that further consideration was needed, during Bill development, relation to what extent the Bill could build on the rights in ICESCR and, for example, take account of the rights in the European Social Charter. We think we should keep an open mind on this, and work out the best way to deliver on the policy objectives during the Bill’s development.

The Cabinet Secretary noted that she was looking for agreement that, in line with the recommendation of FMAG, the Taskforce should recommend, in its upcoming report, incorporation of the rights protected by ICESCR, as outlined in the paper shared with Taskforce members:

• The Taskforce note the considerations around minimum core and progressive realisation that will require further work through the bill development process
• Taskforce members agree that, in line with the recommendation of FMAG, the Taskforce should recommend, in its upcoming report, incorporation of the rights protected by ICESCR.

She noted that a degree of flexibility would be required in the Taskforce recommendations in order to ensure we get this right and noted that open minds would be needed when continuing cross-government work on how to engage. 

Taskforce members agreed with the principle that the Taskforce should recommend incorporation of the rights protected by ICESCR. Professor Miller noted that, as independent chair, he fully welcomes the Government’s commitment to incorporation as outlined by the Cabinet Secretary. He noted that Murray in particular has been giving thought to the Bonavero report, with regards to identifying the minimum core in the Scottish context at the outset of the framework, as well as ensuring that there is a duty to progressively realise these rights. He noted the importance of clarity of objectives and outcomes, and ensuring that they are in line with international obligations. 

Judith noticed that the SHRC were also in support of the recommendation, and that ICESCR is a solid minimum standard to build progressive realisation on within the context of the framework. Alastair Pringle echoed his full support of the proposal.

Mhairi similarly echoed full support of the recommendation. She added that discussion of minimum core and progressive realisation needs to be elaborated on in the report, to highlight where the Taskforce has gone beyond the work of FMAG. She noted that she felt direct textual incorporation, as discussed in the draft report, is often the most visible and effective method, and that a direct link to the international element of ICESCR could be of importance, even if not incorporating the direct text of treaty.

The Cabinet Secretary noted the inevitability of incorporating multiple treaties, and stated that there may be more effective ways to do that incorporation than  through including the direct text of each treaty (especially since the rights within overlap). She said that ensuring a coherent integrated framework was important. 

Murray echoed his support as well, and noted the importance of clearly defining policy recommendations, whilst still leaving flexibility for the modalities of achieving this. He noted the need of a framework that leads to a legal definition of the core minimum standards, with progressive realisation flowing from that.

Madhu Malhotra noted that she was pleased to see Scotland taking such a progressive approach, and noted the crucial nature of ensuring these rights were embodied in a way that inspired other countries, ensuring learnings were incorporated.

The Minister highlighted the work done by Cabinet Secretary for the Constitution, Europe and External Affairs, Michael Russell, on the Continuity Act, noting that flexibility on the model of incorporation would be  of benefit, in order to work alongside existing provisions to keep pace with EU partners, whilst still keeping targets on the highest international standards.  

Professor Miller thanked attendees for their comments, noting that it was good to record the support for the direction of travel and that the ambition of the Scottish Government in doing this cannot be understated, particularly in these current times, so the Taskforce would need to recognise this significance and allow flexibility. 

Any Other Business

Elisa Morgera added that she had met, as suggested by the Minister, Janine Kellett (Head of Homelessness and Housing-Related Social Security Unit), noting that she felt they had a promising, preliminary exchange on the interface between right to housing and right to healthy environment. She added that she felt that Janine Kellett was very interested in the opportunities for more joined-up work across sectors of government (and civil society) that at the moment focus on different human rights separately from one another. Mirren Kelly noted her interest in this, and Elisa offered to share an email for further reflection.

Councillor Parry added that she took a paper to COSLA leaders on incorporation of all three UN equality treaties, noting that there was unanimous support on this, and that there was broad and widespread agreement. She added that, given the positive reception of the previous paper, she was optimistic in bringing the Taskforce recommendations to them for discussion. 

The Cabinet Secretary thanked attendees for their contributions, and noted her delight in how the meeting went, wishing luck for the Working Group meeting scheduled for February 11th.