Domestic legal framework
“ Recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.”
Universal Declaration of Human Rights
The Convention in domestic law
1. With reference to the Committee’s previous concluding observations (para. 7), please provide detailed information on the measures taken to incorporate all the provisions of the Convention into the State party’s legislation, including the adoption of a definition of torture in domestic criminal law that is consistent with article 1 of the Convention.
The Scottish Government is committed to creating a modern, inclusive Scotland which protects, respects and realises internationally recognised human rights standards; to defending existing human rights safeguards (including those provided by the Human Rights Act, Scotland Act and EU law); and to a continuing programme of action which gives further and better effect to international human rights treaty obligations.
The Scottish Ministerial Code places an overarching duty on all Scottish Ministers “to comply with the law, including international law and treaty obligations.” The Scotland Act 1998 requires that all legislation passed by the Scottish Parliament and all acts of members of the Scottish Government be compatible with rights contained in the European Convention on Human Rights (“the Convention rights”), Article 3 of which provides that no one shall be subjected to torture, inhuman or degrading treatment or punishment. The Human Rights Act 1998 (HRA) requires every public authority in Scotland to act compatibly with the Convention rights and enables human rights cases to be taken in domestic courts.
In 2018 the Scottish Government refreshed Scotland’s National Performance Framework (NPF). The 11 National Outcomes now include an explicit human rights outcome: “We respect, protect and fulfil human rights and live free from discrimination”. A further seven National Outcomes are linked to the international human rights framework, including treaty obligations under the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights and the UN Convention on the Rights of the Child. A total of 31 (out of 82) national indicators are used by the NPF to track practical progress against the human rights element of these outcomes. In addition, the refreshed NPF was developed to be consistent with the Sustainable Development Goals. The new NPF outcomes and indicators were developed in close consultation with the Scottish Human Rights Commission and with wider civil society.
On 5 September 2017, A Nation with Ambition: the Government’s Programme for Scotland 2017-18 was published. It contained 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
The First Minister’s Advisory Group on Human Rights Leadership was chaired by the former Chair of the Scottish Human Rights Commission, Professor Alan Miller, and included the Commission’s current Chair. Seven other members contributed expertise in relation to civil, political, economic, social, cultural and environmental rights, and on EU and constitutional matters.
The Group carried out its work entirely independently of government and presented its report and recommendations to the First Minister on 10 December 2018 (Human Rights Day). It had been asked to examine the human rights impacts of UK withdrawal from the EU and how best to protect and promote all human rights across all potential scenarios. In doing so, it applied the three principles articulated by Scotland’s Standing Council on Europe:
- there must be no regression from current standards;
- Scotland must keep pace with future EU standards; and
- Scotland should demonstrate leadership on human rights.
The Group also gave particular consideration to the potential for incorporating international human rights treaties into domestic law, and the means by which this might in practice be undertaken.
The seven recommendations made by the Group are that there should be:
- An Act of the Scottish Parliament which provides human rights leadership.
- A public participatory process, to be developed as a vital part of preparation of the Act and its implementation.
- Capacity-building to enable effective implementation of the Act so as to improve people’s lives.
- A Scottish Government National Mechanism for Monitoring, Reporting and Implementation of Human Rights
- Development of human rights-based indicators for Scotland’s National Performance Framework
- Creation of a National Task Force to implement the recommendations
- A written constitution including a Bill of Rights for Scotland, in the event that Scotland becomes an independent state.
Delivering for today, investing for tomorrow: the Government’s Programme for Scotland 2018-2019 (2018-19 PfG) commits the Scottish Government to responding in full to the Advisory Group’s recommendations, prioritising actions that can be taken to address the human rights and equality impact of withdrawal from the EU. In her response to the report, the First Minister endorsed the report’s overall vision of a new “Human Rights Framework” for Scotland and confirmed her intention to establish a national taskforce to carry that work forward.
The Prisons (Scotland) Act 1989 (sections 6A and 7G) makes explicit reference to the OPCAT and the visiting role of the UN Sub Committee on the Prevention of Torture.
Criminal penalties for torture
2. Please indicate the measures adopted by the State party to ensure that torture or complicity in torture are subject to appropriate penalties commensurate with the seriousness of the crime, in accordance with article 4 of the Convention.
The Scottish Government unreservedly condemns torture as an abhorrent violation of human dignity. The use of torture is a penal offence, as set out in section 134 of the Criminal Justice Act 1988, which provides that it may be punished with life imprisonment.
Measures are in place to ensure that police officers are held accountable for their actions and steps will be taken against any officer who commits any act of torture. Section 48 of the Police and Fire Reform (Scotland) Act 2012 states: “The Scottish Ministers must make regulations as to the governance, administration and condition of service of constables and police cadets.” Section 52 of the Act provides that regulations under section 48 must establish, or provide for the establishment of, procedures for dealing with a constable whose standard of behaviour or performance is unsatisfactory.
The International Criminal Courts (Scotland) Act 2001 provides for the offence of crimes against humanity. This offence includes within it conduct amounting to torture, and the maximum penalty available is up to 30 years’ imprisonment.
Inadmissibility of evidence obtained through torture
3. With regard to the Committee’s previous concluding observations
(paras 12 and 25), please provide information on the concrete measures taken to ensure respect, both in law and in practice, for the principle of inadmissibility of evidence obtained through torture. Please provide examples of any cases that have been dismissed by the courts owing to the introduction of evidence or testimony obtained through torture or ill-treatment.
The basic rule in Scots law is that a confession is not admissible in evidence against an accused in criminal proceedings unless the confession has been given freely and voluntarily and was not extracted by unfair or improper means. Accordingly, a confession made as a result of threats, inducement or undue influence would not be admissible in evidence against an accused person. Nor would a confession which is “tainted with an element of bullying or pressure designed to break the will of a suspect or force from him a confession against his will.”
Reliance by the prosecutor on evidence obtained by torture would, in any event, be incompatible with the ECHR and accordingly unlawful in Scotland. If the accused puts in issue the question of whether a confession is admissible, the onus is on the prosecutor to establish that the confession was made freely and voluntarily and was not extracted by unfair or improper means.
Moreover, since the general rule in Scotland is that the crucial features of an offence – the fact that the offence was committed, and that it was committed by the accused – must be established by evidence from at least two sources, a confession is insufficient in itself to secure a conviction, without further evidence.
Human Rights Act 1998
4. With reference to the Committee’s previous recommendations (para. 8), please provide information on the consultation process on the repeal of the Human Rights Act 1998 and the adoption of a revised Bill of Rights. Please outline the likely impacts of the proposed changes to the legal framework on the human rights protections set out in the Convention, including the extent of their jurisdiction.
The Scottish Government has consistently opposed proposals to repeal the HRA throughout the UK, not just in Scotland.
Important statements of position include speeches by the First Minister,  and evidence to the Scottish Parliament European and External Relations Committee.  Repeal of the HRA would diminish the UK’s reputation overseas and serve to encourage repressive regimes around the world. Within Scotland, it would impact directly on the rights and interests of everyone in Scottish society and undermine fundamental constitutional principles which are hard-wired into the devolution settlement.
Any attempt to repeal existing human rights protections can be expected to require the consent of the Scottish Parliament, which has definitively expressed its position:
- 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 undertaking 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, 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.”
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