Domestic human rights framework
National Performance Framework
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 UNCRC. 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.
UK withdrawal from the European Union
The UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill was passed by the Scottish Parliament in March 2018. It was subsequently referred to the UK Supreme Court under section 33 of the Scotland Act 1998 by the Attorney General and the Advocate General for Scotland.
The Court has now ruled that all but one of the provisions contained in the Bill were within devolved competence at the time the Scottish Bill was passed. However, subsequent legislation in the UK Parliament has meant that a number of provisions in the Bill cannot now take effect. These include section 5, which would have provided for the general principles of EU law and the EU Charter of Fundamental Rights to remain part of Scots law on or after exit day, so far as they would apply to devolved matters.
First Minister’s Advisory Group on Human Rights Leadership
A Nation With Ambition: The Government’s Programme for Scotland 2017-18 (2017-18 PfG) contained a commitment to:
“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”.
The Group was chaired by the former Chair of the Scottish Human Rights Commission, Professor Alan Miller, and included the Commission’s current Chair amongst its members. 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 Dec 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 (NPF).
- 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.
UN Convention on the Rights of the Child
The 2017-18 PfG committed the Scottish Government to undertake a comprehensive audit on the most effective and practical way to further embed the principles of the UNCRC into legislation, policy and practice, including the option of full incorporation into domestic law. The audit is underway and it is intended to publish that work in spring 2019.
Scottish Ministers announced in September 2018, through the 2018-19 PfG, their commitment to incorporating the principles of the UNCRC into domestic law. There are some particular complexities in relation to incorporating the principles into domestic law and Scotland’s devolution settlement, which require to be worked through. Such processes take time but the evidence is clear that an inclusive and consultative approach is the best foundation to achieve the right model. Therefore, in 2019 the Scottish Government plans to carry out a period of consultation and engagement on the best way to incorporate the principles. This will allow the legal and practical issues to be addressed ahead of incorporation.
Convention on the Elimination of all forms of Discrimination Against Women
On 2 May 2018 the Scottish Government published its contribution to the UK’s 8th periodic report under CEDAW as a separate position statement, describing a range of Scottish-specific initiatives and policies to support implementation of the Convention.
Email: David Holmes