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Protecting Scotland, Renewing Scotland: The Government’s Programme for Scotland 2020-2021’ (PfG) was launched on 1^st September 2020 and made a number of positive commitments on human rights as well as confirming that the UNCRC would be incorporated into Scot’s law. The challenge will be to ensure that the law on human rights, the Human Rights Act 1998 as well as the Scotland Act 1998, will be mainstreamed across Government business as well as the separate duties under the Equalities Act 2020. Organisations have a great opportunity to influence the delivery strategy of government as well as build up understanding with supporters and stakeholders so that human rights realise their potential to make Scotland fairer.

It is impossible to comment on this global pandemic without first expressing our condolences to those who have lost loved ones and our solidarity with those facing misery, financial hardship and those fearful of going to work and being at work every single day.

Responding to the COVID-19 emergency has raised issues which impact on human rights: the right to life, the right to the highest attainable standard of physical and mental health, the right to be safe, the right to respect for private and family life and the right to liberty. When agreeing solutions, a sensible approach is to apply three tests: is it lawful, is it a proportionate response and is your proposed course of action reasonable in all the circumstances?  Of course, such an approach to balanced decision making requires knowledge of human rights and having all the information available to make fair decisions.

Interest in and applying human rights on everyday issues has, arguably, never been greater in Scotland. The interest is not just about civil and political rights but economic, social, cultural and environmental rights too eg the right to food, to a basic income and to education. Community responses to ensure people are cared for, eat and can chat prove Scotland’s rich seam of human rights defenders in action. The immediate opportunity as well as in the longer term is to turn family, social and community discussions and action into a broader application of and support for making Scotland a human rights respecting country.

Problems require us to stretch and to paraphrase Horace ‘adversity reveals genius’.  Being able to evidence the human rights logic of your decision-making process helps to secure buy in from staff and stakeholders and fits the Scottish Government ask of delivering ‘human rights leadership’ in publicly funded services.  The deadly nature of the virus and the consequences of an enforced lockdown have brought misery but also a shared objective of recovering better.  Mainstreaming human rights across publicly funded service could be a legacy which would prove it is no longer ‘business as usual’.

The UK Parliament’s Joint Committee on Human Rights has confirmed it will work to ensure Government actions are compliant with human rights during this challenging time. A particular focus will be on respect for the European Convention on Human Rights (ECHR).

In response to the COVID-19 pandemic, the UK Government has announced measures which aim to protect individuals’ right to life (Article 2 ECHR) but emergency legislation and other Government actions may interfere with human rights, for example the right to liberty (Article 5 ECHR) and the right to respect for family life (Article 8 ECHR). As Government actions must be proportionate, it’s important that the Joint Committee understands the impact of these measures. Therefore, the Joint Committee wants to hear your views on:

What steps need to be taken to ensure that measures taken by the Government to address the COVID-19 pandemic are human rights compliant?

What will the impact of specific measures taken by Government to address the COVID-19 pandemic be on human rights in the UK?

Which groups will be disproportionately affected by measures taken by the Government to address the COVID-19 pandemic?

You can send submissions of no more than 1,500 words through the written submission form. The Joint Committee states that ‘as the situation is evolving’ it wishes to respond to issues as they arise, so there is no specific deadline but ‘just as soon as possible’.

Good news on human rights delivery in Scotland as we are moving from passive compliance to active and evidenced delivery.

Within the Scottish Government a ‘Human Rights Outreach & Improvement Team’ has been established.  One of its first actions was delivery of a ‘Human Rights Leadership Event’ on 20th February 2020 in Edinburgh targeted at the public sector. The presentations are available online. The new team adds to the work of the Equality, Human Rights and Third Sector Division in the Directorate for Local Government and Communities.

Leadership on an issue changes the culture of an organisation. Leadership can happen at any level, but everyone needs to ‘buy in’ to the ambition on human rights to make compliance happen and make rights real for people. Leaders enable improvements in performance by ensuring an organisation has the culture, knowledge, skills, policies and procedures in place to deliver. Taking the lead and working with staff teams on delivery makes the biggest, positive impact.

The Scottish Government plans to introduce a Human Rights Leadership Bill, following on from the recommendations of the First Minister’s Advisory Group on Human Rights Leadership that has now become a ‘Taskforce‘. Leaders drive change and can ensure that legal duties in the, now 22 years old, Human Rights Act are actually delivered. The Act was passed at the UK Parliament in 1998 and covers the public sector as well as private sector and Third Sector organisations when they are delivering public services and services of a public nature. Without realising it organisations already respect, protect and fulfill rights and the challenge is to capture that good practice and replicate it across an organisation.

Evidence of compliance builds public trust and enhances the reputation of organisations, so rights holders and duty bearers both win.

The River Forth’s three bridges illustrate the challenges of mainstreaming human rights in the design and delivery of publicly funded services: although each bridge does the same, they are accessible to different groups and the people within the groups change depending on what journey they are on i.e. a train, a bus or a car; the bridges don’t always work as expected. Human rights provide a framework but different approaches are required depending on who you are working with and the challenges faced on the journey to realise rights and deliver duties.

The publication of the proposed Scottish Budget for 20/21 offers another route, some may say incentive, for services funded by the public purse to initiate, demonstrate and evaluate progressive actions to mainstream human rights. Rooting policy ambitions in budget allocations is really important in securing the change which has been sought by politicians and parliamentarians for years and which is now integral to the National Performance Framework (NPF): ‘We respect, protect and fulfill human rights and live free from discrimination’. There seems to be more money on the table to make that happen as the budget states ‘ … we have increased the Equality and Human Rights budget to £30.2 million, its highest ever level, representing our commitment to embedding equality, inclusion and human rights across all portfolios.’ Investment in people and services will make a difference and will help make Scotland fairer.

Action on compliance and promotion makes financial and legal sense. The Human Rights Act 1998 is now 22 years old and requires those delivering public services and those of a public nature to comply with the European Convention on Human Rights (ECHR). Scottish Ministers have similar duties under section 57 of the Scotland Act 1998. Failing to act can cost reputation as well as be expensive in legal costs so prevention is better. There is a reminder in the news today (12th February) of the importance of threatening strategic litigation to remedy established wrongs. The Equalities and Human Rights Commission (EHRC) has sent a ‘pre-action letter to the Secretary of State for Health and Social Care, arguing that the Department of Health and Social Care (DHSC) in England has breached the ECHR over the repeated failure to move people with learning disabilities and autism into appropriate accommodation. We await developments with interest! The same tactic has also been used in Scotland, for example in 2019 the EHRC threatened legal action to prevent unlawful restraint and seclusion in schools which promptly resulted in the Scottish Government agreeing to deliver a four point plan.

The UN Convention on Economic Social and Cultural Rights places an obligation on the Scottish and UK Government, and those it funds, to progressively realise the listed rights to the maximum extent of available resources. As we move forward to integrate human rights, visibly, within publicly funded services it is important that rights holders and duty bearers share the journey and travel in the same direction.

The UN Human Rights Committee will consider the UK Government’s performance on delivering the International Covenant on Civil and Political Rights on 24th March 2020 in Geneva. Scrutiny of human rights delivery and fulfillment of responsibilities in Scotland will form part of the UK wide review. The Committee will produce a ‘List of issues Prior to Reporting’ which will seek answers to matters of concern. To keep up to date with developments on the ‘LOIPR’ go to the Committee’s site and view the agenda and the submissions received – scroll down to the bottom of the page and you will see the UK is listed there.

The UN’s Human Rights Committee wants to hear from NGOs (non-governmental organisations) about the state of civil and political rights in the UK including Scotland. The Committee is assessing UK, including Scotland’s, compliance with the International Covenant on Civil and Political Rights. In particular the Committee invites evidenced proposals from NGOs about what should be put in the ‘list of issues prior to reporting’ (LOIPR) ie what questions should be asked of the UK government before it submits its report to the UN. The questions can relate to devolved or reserved matters.

The LOIPR of UK is scheduled for adoption during the Committee’s next 2020 session – on 8th March. There is more information available from the UN at https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/SessionDetails1.aspx?SessionID=1371&Lang=en. The deadline for the NGO written contributions is 13 January 2020.  

Once the UK LOIPR is adopted, the UK will be given a year to reply, The reply will be treated as the UK’s 8^th periodic report and will be considered by the Committee in 2022 along with other submissions on the UK eg from NGOs and National Human Rights Institutions (NHRIs). Something to get involved in?