- 1 Mar 2021
Attendees and apologies
- 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
- Claire Sweeney – Director for Place and Wellbeing, Public Health Scotland
- Fiona Killen – Solicitor, Law Society of Scotland
- Kavita Chetty – Scottish Human Rights Commission
- Mirren Kelly – COSLA
- Lynn Welsh – Equality and Human Rights Commission (representing Alasdair Pringle)
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
- Daniel Garraghan – Bill Team
- Jane McAteer – Bill Team
- Afson Barekat – Head of Rights Branch, Scottish Government Legal Directorate (SGLD)
- Stuart McLean – Private Office
- Ciara McCafferty – Private Office
Apologies were noted from:
- Alastair Pringle - Executive Director, Equality and Human Rights Commission
- Nils Muižnieks – Regional Director for Europe, Amnesty International
Items and actions
Welcome and Pre-Cleared Papers
The Cabinet Secretary thanked members for pre-clearing papers and noted that attendees should feel free to attend to any childcare issues that arise during the meeting, mindful that everyone is home at the moment due to the lockdown.
The Cabinet Secretary invited the Taskforce members to let her know if anyone is having challenges around personal capacity due to the Covid-19 restrictions. Members should feel welcome to say to either her or her officials. Ms Somerville also recognised that across Government resources are stretched but human rights in general and the Taskforce’s work remain a priority. The Bill team and other officials are working to build up the Scottish Government’s formal positions on matters such as the potential incorporation of UN treaties.
Madhu Malhotra joined the meeting and the Cabinet Secretary invited her to speak. Madhu thanked the Co-Chairs for inviting her and noted that human rights is an issue close to her personally and professionally and supports the goal of Scotland being a world leader of human rights policy and practice.
Update on public and political engagement
Professor Miller led on this update. He noted that engagement with political parties is almost complete. There was positive interest by all that is indicative of broad support across the parties. He updated the group on positive meetings held with Gianni Magazenni, office of high commissioner of human rights, and also with Tom Mullen, on the UK Government Review of the Human Rights Act.
Professor Miller also gave an update on the public engagement since the last meeting. The CEDAW reference group met, with an honest appreciation of the challenges of incorporation, particularly given the limited resources available due to the impact of the pandemic. The Public Sector Reference Group met with a focus on the right to a healthy environment, and the incorporation of the CEDAW, CERD and CRPD treaties. He thanked Elisa Morgera for leading a highly informative presentation and discussion on environmental rights. A clear conclusion from that discussion was that scrutiny bodies see the value of human rights as a lens for scrutinising the actions of public authorities. In the discussion on treaty incorporation, a clear message was that it would be better for incorporation to be as integrated as possible, for example through one set of guidance and one programme for capacity building. There was also positive discussions held at the Healthy Environment Roundtable meeting.
Update on HRCS/SHRC rights-holders participatory project and Together Work
Mhairi Snowden provided an update on Human Rights Consortium Scotland (HRCS) work. They have supported meetings by a number of groups including Inclusion Scotland, Engender, Glasgow Women’s Voluntary Sector Network, Mongol Identity, with language groups including Polish and Spanish speakers, and with students using English as a second language. Mhairi noted that these latter meetings in particular have underlined for her the importance of CERD incorporation. Meetings with children and young people are planned for next week and the Taskforce was invited to take part in those discussions. HRCS has also been taking forward discussions with individual representatives of the traveller and gypsy communities. HRCS is working towards a draft report of their work being available for the Taskforce to discuss by 10 February.
Madhu asked if Mhairi’s work included engagement with survivors of violence, particularly domestic violence. Mhairi advised that there was no specific engagement around that theme but the Consortium works with a number of groups that include survivors of violence so the views of survivors are being sought. Mhairi also noted that the limited engagement possible due to the pandemic has been a challenge and an important part of the next phase of work is maintaining and building on the good level of engagement we have achieved. Claire Sweeney offered to support this next stage of work and agreed that making sure these voices are heard and informing our work is important. The Cabinet Secretary and Minister welcomed this work. Ms McKelvie also noted that she and Cllr Kelly Parry chair a board on women’s rights that includes voices from survivors of violence group; and there is good representation of gypsy and traveller voices in the Women’s Voices Project. Mhairi thanked Ms McKelvie for this point and noted that a lot of these groups have been represented across the Taskforce work such as in the Civil Society Reference Group.
The Group agreed that when it has a formal discussion about the launch of the Taskforce and next steps, it should also discuss how best to ensure that those who have engaged in this work hear what happens next, see the links in what happens next and feel engaged on the process.
Update on Sub Group Progress
Professor Miller introduced this item to review the progress of the subgroups, of which the Rights and Duties subgroups have met as well as the working group to review the progress across these groups. The Implementation subgroup is due to meet on 19 January.
The Rights subgroup agreed to recommend incorporation of ICESCR, CERD, CRPD, CEDAW along with greater incorporation of rights for older people, LGBTI people and for environmental rights. There was support from subgroup members for adopting and adapting the maximalist approach taken by UNCRC when incorporating these other treaties. There is also support for a right to participation. The Rights subgroup also discussed including a recommendation around higher standards. This would allow Scotland to adopt standards beyond the framework if they are deemed to be better than what is in the framework.
The Duties subgroup is working through an examination of twelve things which they consider additional to the approach taken in the UNCRC Bill including a preamble or equivalent of a purpose clause that sets out the intent of the legislation, an interpretive clause, and main duties including due regard, to comply, and a role for a sunrise clause in commencement of duties. The subgroup will continue working through these at its next meeting.
The group discussed the level of detail on these issues needed for the final report. It was noted that the Scottish Parliament’s standing orders do not allow for preambles and that it is beyond the scope of the working group to change this. Professor Miller proposed that the level of detail in the report and recommendations should be sufficient to give high level clarity on the purpose and intended effect, of the framework. The Cabinet Secretary agreed with this and noted that the drafting of legislation will be done separately, and informed by, the Taskforce’s work which should focus on describing the intended policy outcome. Part of that work will involve working out how Taskforce members can be kept involved in that process.
Update on Environmental Rights
Professor Morgera led a discussion on this item. Elisa described the progress made in engagement with stakeholders on this topic, noting that there may be new alliances between rights holders and duty bearers using the right to a healthy environment as a shared approach. Support for recognition of the right is broad across environmental NGOs but also groups such as Inclusion Scotland who recognise the importance of the environment on realising other rights. There has also been positive discussions with disability and public health groups on ensuring they are involved in environmental decisions that may impact them as a group, such as the banning of single use plastics. Engagement has shown an emphasis on health equality, and human wellbeing, as well as non-discrimination generally. In conversations with duty bearers and civil society groups there is recognition of the intersectionality of society. The right to a healthy environment is also seen as an important step towards realising the rights of the child since there is a particular effect on child development.
The Public Sector Reference Group has shown that duty bearers quickly recognise how this area can be of benefit to their work and contribute to better approach across multiple human rights. The UN has been kept informed of this work and David Boyd, the UN rapporteur on this issue for Scotland, will participate in the third roundtable. In terms of the Taskforce’s recommendation, it should clarify that the right to healthy environment in the framework is substantive, not just procedural, and has a cohesive approach to all aspects of environment.
The next roundtable will have a focus on the access to justice and remedies in environmental rights, and at protection and restoration of the environment. This will also include a discussion on capacity building and how the framework can support cohesive, integrated policies that align multiple human rights approaches effectively – such as through impact assessments – that will help establish Scotland as a leader in this area.
The Group discussed the new body set up as part of the EU Continuity bill, Environmental Standards Scotland. The Group noted that this new body has some potential limitations, particularly that it cannot look at individual cases. This creates a gap compared to the pre-Brexit arrangements and should be explored in the context of providing a right to a healthy environment at all levels. The Group agreed to seek a discussion with the chair of Environmental Standards Scotland and to invite him to the third roundtable. Professor Morgera noted that there may be members of the roundtable who are part of the new environment body but are not attending as representatives.
The Cabinet Secretary welcomed this work, noting its relevance to the upcoming UN Climate Change Conference. The Minister also welcomed this and noted the work of Scottish Government colleagues on the Housing 2040 programme and its relevance to this issue, as well as the work of her colleague Aileen Campbell, Cabinet Secretary for Communities and Local Government, on accommodation and housing. Ministers have made Ms Campbell aware of the Taskforce’s work in this area. Professor Morgera welcomed this and noted that ‘built’ environments are prominent across these discussions.
Discussion on Bonavero Institute Paper
Professor Miller led this discussion. He praised the quality of the report and noted it has international significance. The Bonavero Institute will have an international forum in May 2021 and Taskforce members may be invited to speak about their work at this event. The subgroups and working group has adopted the principles of approach set out in the report to structure its work. It affirms the structure-process-outcome approach taken by the FMAG report. Professor Miller noted that the Taskforce has been mandated to focus on the legal framework (structure) part of that process but that cannot be considered in isolation from ‘process’ and ‘outcome’. He noted that the five principles laid out in the report can, in his view, be met and surpassed by Scotland so that it can be a progressive world leader in human rights.
The Cabinet Secretary welcomed this update and asked if there is anything that can be learned from the report about Finland’s experience in particular. Professor Miller noted that while the Finnish model shares roles among a number of institutions, the potential weakness is the role of the courts, which can be too deferential to other parts of the system. Scottish courts already have experience in exercising strike-down powers and declaring legislation incompatible with Convention rights or outwith competence. There is therefore already a legal culture of challenging other parts of the system which is improving over time. It was noted that, whatever the enforcement mechanism, the framework can be more ambitious in making these processes more accessible.
The Group also discussed finances as a barrier to realising human rights as set out in the report, and how it connects to other parts of the Scottish context such as the National Performance Framework. It noted that the Taskforce’s work has to be seen in the context of the global recovery from the impacts of the COVID-19 pandemic. Globally the pandemic has shone a light on structural inequality. In seeking incorporation of these treaties the framework should address structural inequalities much more effectively, including through monitoring of budget responsibilities.
Murray Hunt noted that he has been discussing the role of parliament and is considering producing a paper on this in collaboration with Judith Robertson and Kavita Chetty. The group was clear they would welcome exploration of this area and the role of other institutions in enforcement and monitoring.
Professor Miller advised that the next meeting on 10 February will include discussion of draft recommendations aimed at matching the tests set out in the Bonavero paper.
Any Other Business
There was no further business raised.