Commission calls for careful consideration of the approach to develop Human Rights Bill
The Scottish Human Rights Commission recommends that careful consideration is given to the legal approach to achieving the new Human Rights Bill, in a consultation response to the Scottish Government. This follows recent legal challenges to the competence of the Scottish Parliament to pass legislation to improve human rights protection in Scots law.
The Commission sets out our position on the proposed Human Rights Bill in a series of three reports launched today. This ‘Incorporation Series’ includes the Commission’s consultation response to the Scottish Government, a process which closes today and seeks to incorporate international human rights directly into Scots law.
Devolution and human rights law
The devolved legislative context for human rights incorporation in the UK is technically complex. The UK government’s legal challenge to the UN Convention of the Child (UNCRC) (Incorporation) (Scotland) Bill and subsequent Supreme Court judgement has an impact on the approach taken with this Bill.
The consultation response explains that there are a number of models for incorporating international human rights treaties into domestic legal systems, besides the ‘direct’ approach to incorporation as proposed by the Scottish Government’s Human Rights Bill. The Commission strongly recommends that further analysis is required to identify the strengths and challenges of different models to avoid weakening of protections. It also calls for transparency on the engagement between the Scottish and UK Governments around the competence of the proposed Bill as it develops to avoid unnecessary delays.
The second report ‘Towards a Model of Incorporation’ includes a legal opinion, prepared for the Commission by independent senior legal counsel on building human rights protections within a devolved setting.
Powers of the Commission
The third report recommends new powers for the Commission to protect and promote the human rights of people in Scotland. The Commission highlights that Scotland is the only country in the UK where its National Human Rights Institution is unable to undertake investigations, to provide advice to individuals, or to raise legal proceedings in its own name in respect of human rights violations.
The proposed Human Rights Bill for Scotland provides a catalyst for the process to review the law which governs the Commission’s powers, but the Commission warns that these new powers must not be limited to those rights which are within the scope of the proposed Bill.
The full ‘Incorporation series’ will be published on the publications page of our website.
- Human Rights Bill consultation response and statement.
- ‘Towards a Model of Incorporation – Legal Opinion’ including the expert advice on human rights treaties from Prof Aileen McHarg and legal opinion of James Mure KC.
- ‘A Stronger Human Rights Commission for Scotland’.
Jan Savage, Executive Director, of the Scottish Human Rights Commission said:
“The Commission is concerned that people in Scotland continue to experience human rights denials, as evidenced in our own research and reports to international bodies, as well as by regulators in health, education, criminal justice, social care, and housing, civil society and media investigations.
“Having advocated for a new legal framework for over a decade, the Commission welcomes the Scottish Government’s proposals for a Human Rights Bill. We believe these provide a significant milestone towards a framework for stronger human rights protection in Scotland.
“However, the context in which this legislation is proposed is significantly different than it was years ago when the ambition of the Bill was first explored by the Scottish Government. Uncertainty over the scope for stronger legal protection for human rights in the devolved context must be brought to a close.
“Regardless which approach is ultimately pursued; the Scottish and UK governments must deliver more effective communication and collaboration in their engagement regarding incorporation so that the progressive development of human rights protection in Scotland is not unnecessarily undermined or delayed.
“Now, as the Human Rights Bill develops, is the time to ensure it will deliver real change for real people. This will also mean addressing barriers in accessing justice such as access to specialist human rights legal advice and simple, rights-based, complaints processes.
“It will mean strengthening the bodies that regulate and scrutinise human rights issues in Scotland and providing them with adequate resources and mandates.
“The Commission’s own role, as Scotland’s National Human Rights Institution, is an essential part of that picture. To effectively fulfil our role in protecting human rights we need sufficient powers to uphold human rights and challenge violations.”
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Notes to editors:
- The Human Rights Bill for Scotland Consultation closes on 5 October 2023. A Human Rights Bill for Scotland consultation guide.
- Read more about work on incorporating human rights law into Scots law and if you have any questions about our reports, please email the Commission at email@example.com.
- The Commission is part of the international human rights system, and is accredited by the United Nations as an ‘A Status’ human rights institution, which means that the Commission is granted a monitoring role at the UN on the actions of the state in Scotland to uphold human rights.