EHRiC/S5/18/12/A

EQUALITIES AND HUMAN RIGHTS COMMITTEE

AGENDA

12th Meeting, 2018 (Session 5)

Thursday 26 April 2018

The Committee will meet at 9.00 am in the Mary Fairfax Somerville Room (CR2). 1. Declaration of interests: Fulton MacGregor will be invited to declare any

relevant interests. 2. Human Rights and the Scottish Parliament: The Committee will take

evidence from—

Rami Okasha, Executive Director of Strategy and Improvement, CareInspectorate; Cllr Elena Witham, Community Wellbeing Spokesperson, COSLA; Cllr Adam McVey, Leader, City of Edinburgh Council; Cath Denholm, Co-Convener of Scottish National Action Plan for HumanRights & Director of Strategy, NHS Health Scotland;

and then from—

Danny Boyle, Parliamentary Policy Officer, BEMIS; Gordon MacDonald, Policy Officer, CARE; Jane-Claire Judson, Chief Executive Officer, Chest Heart and StrokeScotland; Justine Bradd, Housing Rights Development Worker, and Heather Ford,Tenant, Edinburgh Tenants Federation; Emma Ritch, Executive Director, Engender; Peter Kelly, Director, Poverty Alliance;

EHRiC/S5/18/12/A

James Morton, Manager, Scottish Trans Alliance.

3. Human Rights and the Scottish Parliament (in private): The Committee willconsider the evidence received.

4. Prisoner Voting in Scotland (in private): The Committee will consider

correspondence from the UK Ministry of Justice.

Claire MenziesClerk to the Equalities and Human Rights Committee

Room T2.60Scottish Parliament

EdinburghTel: 0131 348 5217

Email: claire.menzies@parliament.scot

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The papers for this meeting are as follows—

Paper from the Clerk EHRiC/S5/18/12/1

Summary of written evidence EHRiC/S5/18/12/2

PRIVATE PAPER EHRiC/S5/18/12/3(P)

PRIVATE PAPER EHRiC/S5/18/12/4(P)

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Equalities and Human Rights Committee

12th Meeting, 2018 (Session 5) - Thursday 26 April 2018

Human Rights and the Scottish Parliament Inquiry Background 1. In 2017 the Equalities and Human Rights Committee launched its inquiry on Human Rights and the Scottish Parliament. This inquiry follows on from the report of the Commission on Parliamentary Reform. 2. The Committee is conducting the inquiry in two phases. The first phase consisted of a literature review of UK and international legislatures’ human rights models, which has been completed. This is available on the inquiry website. The second phase focuses on evidence gathering. Written submissions received to date are available on the inquiry webpage. Oral evidence 3. At its meeting on 26 April 2018, the Committee will hold its third oral evidence taking session of the inquiry. Written submissions from four of the witnesses giving evidence at that meeting are attached in the annex to this paper, for information. The submissions are from are:

• Gordon MacDonald, Policy Officer, CARE;

• Jane-Claire Judson, Chief Executive Officer, Chest Heart and Stroke Scotland;

• Justine Bradd, Edinburgh Tenants Federation;

• Cath Denholm, Co-Convener of Scottish National Action Plan for Human Rights & Director of Strategy, NHS Health Scotland.

Seán Wixted Assistant Clerk to the Committee 19 April 2018

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SUBMISSION FROM CARE

CARE for Scotland’s Response to the Equalities and Human Rights Committee’s Call for Evidence on ‘Human Rights and the Scottish Parliament’

Introduction

1. Christian Action Research & Education (CARE) is a well-established Christian social policy charity providing resources and helping to bring Christian insight and experience to matters of public policy and practical caring initiatives. CARE for Scotland is a department of CARE.

2. CARE for Scotland welcomes the inquiry of the Equalities and Human Rights Committee on ‘Human Rights and the Scottish Parliament.’ Our submission engages with how the Scottish Parliament could enhance its approach to promoting and protecting human rights, and particularly, the right to freedom of religion or belief (FoRB), parental rights, and the right to life for all.

3. As the Brexit debate continues, it is not yet clear how leaving the EU will affect the UK and its human rights protections. The main source of human rights in the UK derives from the European Convention of Human Rights (the ECHR) incorporated into domestic law via the Human Rights Act 1998 (the HRA). It must be emphasised that leaving the European Union will have no impact on the UK’s obligations under the ECHR. It should be noted also that although the 2015 Conservative manifesto contained a proposal to withdraw from the ECHR (including repealing the HRA) and replace it with a British Bill of Rights, the 2017 Conservative manifesto made clear that this would not occur during the lifetime of the present Westminster Parliament. Repeal of the HRA then is dependent upon the Conservatives winning the next Westminster election with a sufficient majority to command support for this policy if indeed it is included in the next Conservative manifesto.

4. Although the UK is scheduled to leave the EU on 29th March 2019, it is as yet unclear what the final deal between the UK and the EU will include. This lack of clarity applies also to the extent to which provisions contained in the Charter of Fundamental Rights of the European Union (the Charter) will remain part of UK law post Brexit. In January 2018, MPs voted in favour of excluding the Charter from the EU Withdrawal Bill. However, this Bill has yet to be passed by the House of Lords and it is possible that it may be amended further to reinstate the Charter into the Bill.

5. The submission focuses on the right to FoRB, and more specifically, 1) the importance and benefits of protecting the right, 2) the clash of protected characteristics that results in the right to FoRB being marginalised, and 3) how the issue could be addressed to ensure that the right to FoRB is fully protected. It starts by considering the underlying philosophical basis of human rights and the need to rediscover this in order to avoid human rights being used as a vehicle to marginalise the right to FoRB.

Participation and Engagement How can the Scottish Parliament empower people to make them more aware of their rights under domestic and international human rights law and to build a strong human rights culture in Scotland? 6. It is important in seeking to build a strong human rights culture in Scotland to recognise the philosophical origin of human rights in the Judeo-Christian tradition. The webpage of the Equalities and Human Rights Committee suggests that human rights have their origin in post-Enlightenment secular thinking. That analysis fails to address the long-standing Christian human rights tradition which developed during the Middle Ages and laid the foundation of the subsequent development of human rights during the early modern era. The reason this is important is because human rights cannot be seen in isolation from the underlying worldview which underpins society and, in particular, our

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understanding of what constitutes fairness and the common good. To see human rights as an end in themselves rather than as a means to an end, is to open them up to subjective interpretation based on the exercise of power by organised interests who seek to promote particular political ideologies. 7. The Christian understanding of human rights is based on the Biblical teaching that human beings are made in the image of God and, therefore, have inherent dignity. This approach sees human rights as being based on objective right and the pursuit of justice. It is far removed from the subjective and individualistic character of much of the secular human rights discourse which has emerged in recent years. In the Christian human rights tradition, the obligation to ensure access to material resources on the part of the poor and the oppressed is prioritised. It is the recognition of the image of God in fellow human beings and in response to the law of God that the rights of others are to be respected.1 These rights are not subjective in nature or possessed by the recipient. Rather they are based on objective right, conferred by God on humanity and recognised by society in law with regard to each person. They rest on the indivisibility of justice and moral goodness. 8. At the root of the Christian human rights tradition is an undergirding ethical framework which sustains the understanding that those who govern do so with a responsibility to administer justice and to promote the common good of society. Rights are not to be vehicles for the assertion of power by individuals or groups in order to dominate others. However, as Dr James Orr argued in a publication for the influential Respublica think tank, unfortunately, much of the modern secular rights agenda seems to have fallen for this temptation to facilitate the domination of particular interests and the advancement of specific political ideologies. Rather than human rights being a mechanism to ensure plurality and respect for difference, it has become the means by which conformity and uniformity is imposed within society and upon religious minorities in particular. It is essential, therefore, Orr argues, to return to a more traditional understanding of human rights where accommodation is made between different groups in order to ensure that no one is more equal than anyone else.2

The Right to Freedom of Religion or Belief (FoRB)

9. FoRB is a fundamental human right protected by international, regional, and domestic law provisions. It is a human right that goes beyond recognising human beings as political and economic entities. Indeed, religion and belief set up the moral foundations for our everyday lives and prescribe certain behaviours. Religion further affirms that there is a higher authority than the Government and so sets up moral limitations to its work.

10. Religious liberty is beneficial for all communities. Indeed, the public service and contribution of religious groups to their communities has been remarkable for many years.3 Nonetheless, the place for religion and the manifestation of religious belief in the public square is increasingly circumscribed and in a way that is causing significant concern. This has an adverse effect not only on those who wish to enjoy their religious liberty, but also on those who benefit from services provided by religious groups (predominately on a voluntary basis). Hence, the right to FoRB must be protected not only because it is a fundamental human right but also because of the positive impact on communities.

11. The Scottish Parliament must act to ensure that the right to FoRB is adequately protected and enforced.

1 Evangelical Alliance, Faith & Nation, London, 146-147. 2 J. Orr, ‘Beyond Belief: Defending religious liberty through a British Bill of Rights’, (November 2016) Respublica, 3. 3 The Cinnamon Network, Cinnamon Faith Action Audit National Report, May 2015. Available at: http://www.cinnamonnetwork.co.uk/wp-content/uploads/2015/05/Final-National-Report.pdf; he Church of England, Church of England at a glance. Available at: https://www.churchofengland.org/about-us/facts-stats.aspx; Paul Bickley, Good Neighbour: How Churches help communities flourish (Tackling Poverty Together Church Urban Fund and Theos: 2014) 4. Available at: http://www2.cuf.org.uk/sites/default/files/PDFs/Research/Good%20Neighbours%20Report-CUF-Theos-2014.pdf.

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The Clashes of Protected Characteristics

12. The right to FoRB, especially religious manifestation, is not adequately protected where it clashes with other equality laws.

13. In the UK, the anti-discrimination and equality provisions are incorporated in the Equality Act 2010. Section 4 of the Equality Act 2010, enlists nine protected characteristics, namely, age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.

14. Under the Equality Act 2010, the protected characteristics are on the same legal footing. However, the empirical reality suggests a hierarchy of the protected features. For example, religious discrimination has been given lower priority than discrimination on the grounds of sexual orientation.4 The primary rationale argued in support of this hierarchy is that religion and belief are matters of choice, contrary to other protected characteristics. This was indeed the conclusion drawn by Lord Justice Sedley in Eweida v British Airways, stating that:

“…one cannot help observing that all of these apart from religion or belief are objective characteristics of individuals; religion and belief alone are matters of choice.”

15. This approach erroneously classifies and simplifies what religion is. Religion or belief cannot be treated as a hobby, which can be picked up or put down. It is constitutive of identity and requires a full and adequate recognition in and protection by law, equal to other protected characteristics. Such a perception of religion as something that can be picked up or put down with ease and without reconstituting identity damages the right of individuals who would wish to manifest their religious belief, including in places like the workplace.

16. One of the measures that could assist with ensuring that the right to manifest religious belief is protected in the workplace would be, for example, the mechanism of reasonable accommodation of religious belief. The Scottish Parliament should consider the formal mechanism of reasonable accommodation of religious belief in the workplace.

The Mechanism of Reasonable Accommodation in the Workplace

17. The Scottish Parliament should endorse the principle of ‘reasonable accommodation’ of religious belief in the workplace and encourage all public bodies to adopt this as best practice. Reasonable accommodation is a mechanism that allows for an exception to be made for an employee in order to accommodate their needs. The principle of reasonable accommodation is already included in law with regard to the treatment of people with disabilities.5 In the United States and Canada, this approach also applies to the accommodation of religious belief in the workplace.6 Currently the employee bears the burden of proof to show that indirect discrimination has occurred where an employer requires them to act in a way contrary to their religious beliefs or where the employer refuses to make accommodation for the manifestation of those beliefs. Under reasonable accommodation the burden of proof is placed on the employer to show accommodation of the employee’s beliefs and practice of his/her religion would place an undue burden on the operation of the organisation. 4 A. Carey and G. Carey, We Don’t Do God: The Marginalization of Public Faith (Monarch Books: Oxford, 2012); Megan Pearson, ‘Religious discrimination and the ‘hierarchy of rights’: non-existent, appropriate or problematic?’ (2016) International Journal of Discrimination and the Law, Vol 16, 37-50. 5 Section 20 of the Equality Act 2010. 6 US: Title VII of the Civil Rights Act of 1964 (Title VII); Canada: Section 15 of the Canadian Charter of Rights and Freedoms. See also: Library of Parliament, Legal and Legislative Affairs Division, Parliamentary Information and Research Service, An Examination of the Duty to Accommodate in the Canadian Human Rights Context (January 2012) 7. Available at: https://lop.parl.ca/content/lop/researchpublications/2012-01-e.pdf.

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18. Although the Scottish Parliament has no power to amend the Equality Act 2010 to incorporate reasonable accommodation, it could encourage the adoption of this principle as best practice throughout the public and private sectors. To do so would be to recognise the right to freedom of thought, conscience and religion. It would have the effect of reconciling the potentially conflicting approaches adopted in implementing equality and human rights approaches which has led to increasing cases of people of faith having their rights neglected in order to impose uniformity.

19. Reasonable accommodation of religious belief in the workplace (in the UK) has been considered by the Equality and Human Rights Commission (EHRC) on a few occasions. In its report from 2013 ‘Religion or Belief in the Workplace: A Guide for Employers Following Recent European Court of Human Rights Judgments’7, the EHRC indicated that:

“Employers should review workplace policies and practices to ensure that they do not unjustifiably discriminate against an employee who requests a change due to a particular belief. Employers are encouraged to consider how they would respond were such a situation to arise in the future. An employer should take all requests seriously and should not make assumptions about the significance of religion or belief, or disregard a request because it is made by only one employee. Even those who have the same religion may not share the same beliefs or practices. Employers are encouraged to take as their starting-point consideration as to how to accommodate the request unless there are cogent or compelling reasons not to do so, assessing the impact of the change on other employees, the operation of the business and other factors outlined below. To reach a fully considered, balanced, and reasonable conclusion, an employer should consider, amongst other factors: The cost, disruption and broader impact on business or work if the request is accommodated Whether there are health and safety implications for the proposed change The disadvantage to the affected employee if the request is refused The impact of any change on other employees, including on those who have a different religion or belief, or no religion or belief The impact of any change on customers or service users, and Whether work policies and practices to ensure uniformity and consistency are justifiable.”

20. Although the EHRC has subsequently reversed its position on reasonable accommodation, CARE for Scotland believes that there remains much merit in this approach. A number of weaknesses in the EHRC’s latest approach have been identified in the academic literature that are discussed below.

No Additional Protection

21. Firstly, the EHRC erroneously concluded that introducing such a mechanism of reasonable accommodation of religious belief in the workplace would not add any substantial additional protection. That this is not the case can be seen by studying the work of Griffiths and Vickers.

7 Equality and Human Rights Commission, Religion or Belief in the Workplace: A Guide for Employers Following Recent European Court of Human Rights Judgments (2013), available at: https://www.equalityhumanrights.com/sites/default/files/gd.12.411-2_religion_belief_workplace_employers_26-03-14b.pdf

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22. Griffiths noted that the current legal framework for indirect religious discrimination claims might not be adequate8 as it relies on showing that the requirement complained of is disadvantageous to the group as a whole rather than just to the individual involved. The consequence of this is that individuals unable to show that the entire group was disadvantaged were unsuccessful in their claims. The mechanism of reasonable accommodation of religious belief in the workplace would have replaced the requirement to show group disadvantage and so address the individual needs of an employee to have their religious belief accommodated.

23. The EHRC agreed that the mechanism of reasonable accommodation would provide a more precise framework for requests of accommodation of religion. Nonetheless, the EHRC then asserted that this was not enough to justify the introduction of the new legal mechanism.

24. The EHRC failed to consider that the formal mechanism of reasonable accommodation of religious belief in the workplace would introduce more clarity to religious accommodation and to the practice of balancing the conflicting rights. The degree of clarity offered by the formal mechanism of reasonable accommodation should have been perceived as an extra protection sufficient to justify its introduction.

25. Furthermore, the mechanism of reasonable accommodation would have provided a more transparent framework and so would help achieve legal certainty9, which is not achieved by the current system.

No prohibition of an informal accommodation

26. Secondly, the EHRC considered the argument that the mechanism of reasonable accommodation already exists to accommodate disability needs. However, the EHRC did not believe that it should be extended to religion. The EHRC concluded that both cases are different in that ‘the reasonable adjustment duty requires an employer to remove barriers to ensure disabled people have the same opportunities to participate in society and does not result in less favourable treatment of people with another protected characteristic.' The EHRC warned against the fact that establishing such a mechanism to accommodate religious belief would lead to privileging religious belief over other protected characteristics. Nonetheless, the EHRC considered that there was nothing in the law to prevent employers from accommodating religious belief voluntarily. However, such a voluntary model may be controversial as it would introduce uncertainty regarding employees' rights and discrepancy of the approach between different workplaces.

27. It is agreed that some protected characteristics, like for example, disability have an impact on the ability to perform specific jobs. Griffiths argued that this was the case with protected characteristics like pregnancy, age, and disability. This also justified special rules to safeguard these features.10 Griffiths indicated that characteristics of sex, race, sexual orientation or religion and belief would have less impact on the ability to do specific jobs or tasks.11

28. Nonetheless, Griffiths suggested that ‘the manifestation of religious belief is potentially more like disability than sex or race are, because of the multifaceted nature of religious belief which… can often be interpreted by an individual believer in a variety of ways.'12 She concluded that ‘religious belief is

8 Elisabeth Griffiths, ‘The ‘reasonable accommodation’ of religion: Is this a better way of advancing equality in cases of religious discrimination?’ (2016) International Journal of Discrimination and the Law Volume 16 (2-3) 161 -176, 167. See also: G. Pitt, ‘Taking religion seriously’ (2013) Industrial Law Journal 42: 398–408. 9 M. Gibson, ‘The God ‘dilution’ religion, discrimination and the case for reasonable accommodation’ (2013) Cambridge Law Journal 72: 589. 10 Elisabeth Griffiths, ‘The ‘reasonable accommodation’ of religion: Is this a better way of advancing equality in cases of religious discrimination?’ (2016) International Journal of Discrimination and the Law Volume 16 (2-3) 161 -176, 162. 11 Ibid. 12 Ibid.

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complex, and the requirements of indirect discrimination do not allow for a particularly nuanced or individualised approach to the manifestation of religious belief.'13

29. Vickers indicated that ‘even if in some respects the views and beliefs are chosen, nonetheless, this should not be used as a reason to reduce protection for religion and belief interests: such choices are so closely related to concepts of identity that they become ‘fundamental choices.''14

Uncertainty

30. Thirdly, the current approach without any formal mechanism of reasonable accommodation of religious belief in the workplace creates discrepancies in the approach (if any) to accommodating religious belief in the workplace. Consequently, some individuals may be granted religious accommodation while others in the same or similar situation would not. Having a recognised formal mechanism for reasonable accommodation of religious belief in the workplace would provide some precedent for dealing with differing cases and hence would add more structure and clarity to handling religious accommodation. Such a formal mechanism would ensure that religious accommodation is applied consistently, without arbitrarily limiting the right to religious manifestation and without jeopardising the concurring rights of others. Currently, even if such an informal mechanism exists, there is no oversight of the situation, and any irregularities are brought to light only once legal actions are anticipated.

31. Vickers criticised the current approach indicating that ‘the potential for inconsistency in the law governing religion or belief in the workplace is hardly surprising given the existence of the two legal frameworks, one based on human rights, and one on equality.’15 Vickers claimed that the case of Ladele is a result of such tensions. Vickers warned that ‘a court is not the appropriate body to determine detailed questions related to the content of religious belief.’16 The formal mechanism of reasonable accommodation of religious belief in the workplace would help to take this burden from courts.

Other considerations

32. The formal mechanism of reasonable accommodation would be beneficial for employees and businesses. Griffiths indicated that ‘allowing employees to manifest their religious belief as long as no harm is done to others could improve employee well-being, improve a company’s public image and help with the recruitment and retention of staff.’17 This potentially means a better quality of working life and higher satisfaction.

33. Furthermore, with the formal mechanism of reasonable accommodation in place, individuals would have more clarity concerning their rights and obligations in the workplace.

34. Lastly, the mechanism of conscientious objection can provide some guidance on how reasonable accommodation of religious belief in the workplace may apply. Indeed, the accommodation of

13 Ibid., 171. 14 Lucy Vickers, ‘Achbita and Bougnaoui: One Step Forward and Two Steps Back for Religious Diversity in the Workplace’ (2017) European Labour Law Journal 1-26, 13. See also: P.W. Edge, ‘Religious rights and choice under the European Convention on Human Rights’ (2000) 3 Web JCLI. 15 Lucy Vickers, ‘Achbita and Bougnaoui: One Step Forward and Two Steps Back for Religious Diversity in the Workplace’ (2017) European Labour Law Journal 1-26, 3. 16 Ibid. 11. 17 Elisabeth Griffiths, ‘The ‘reasonable accommodation’ of religion: Is this a better way of advancing equality in cases of religious discrimination?’ (2016) International Journal of Discrimination and the Law Volume 16 (2-3) 161 -176, 174.

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conscientious objection of medical staff to abortion is an example of how reasonable accommodation could be modelled.18

Parliamentary Procedure and Process

What further steps could the Scottish Parliament take to ensure that people’s human rights are being taken into consideration when the Scottish Government and public authorities are creating policies? 35. There is a need for much more rigorous consideration of human rights prior to legislation being proposed by the Scottish Government and passed by the Scottish Parliament. The Scottish Parliament and the Scottish Government should take greater care when appealing to human rights standards. One example of this is the Scottish Government’s recent consultation on the review of the Gender Recognition Act which cites the Yogyakarta Principles as a source of authority. These principles have no standing in international law and are simply a declaration of a group of committed activists and academics which were drawn from only 25 countries.19 There is no international consensus among member states of the United Nations to support these principles and they have never been ratified by the UN General Assembly. A non-binding and non-legislatively drafted document without any governmental or inter-governmental input such as the Yogyakarta Principles should not be cited as a source of authority of international ‘best practice’ with regard to human rights law. 36. Although the Scottish Government has still to bring forward legislation in relation to the review of the Gender Recognition Act, the inadequacy of the analysis in that consultation highlights that there is a need for a much more nuanced and accurate analysis of the international human rights framework in policy and legislative discussions. The Scottish Parliament should certainly seek to set an example of best practice in this regard. 37. A further example of the failure to have a fully informed and nuanced discussion of human rights prior to policy and legislative initiatives being brought forward relates to the information sharing provisions of the Children and Young People (Scotland) Act 2014 which was considered as a Bill by the Scottish Parliament in 2013/14. In 2013, CARE provided written evidence to the then Education and Culture Committee (the Committee) in which we highlighted the fact that the UN Convention on the Rights of the Child (UNCRC) recognises the role of parents.20 We suggested that ‘children’s rights should not be viewed in isolation from parental rights and the family context’. Citing the Preamble and Articles 3, 5 and 29 of the UNCRC, we stated that the Convention indicates ‘the central role of parents in the raising of children and the duty of State Parties to respect the rights of, and support, parents in this role’. Specifically, we expressed the concern that the proposal to introduce a Named Person for every child in Scotland might erode the rights and the important role of parents and civil liberties would be infringed. Other evidence highlighted specific concerns that the information sharing provisions in the Bill were not compliant with Article 8 of the ECHR.21 Unfortunately, there was no adequate consideration of these points by the Committee. Very little time was given over to taking evidence on the Named Person scheme. Most of the organisations asked to give oral evidence were supportive of the scheme. The Committee seemed to accept at face value the assurances of Ministers that the scheme was ECHR compliant without adequately questioning Ministers to establish the basis of this assertion. The information sharing provisions of the Bill were subsequently found by the UK Supreme Court to be in breach of Art 8 of the ECHR. Evidently the assurances given by Ministers proved to be

18 Wendy Chavkin, Laurel Swerdlow, and Jocelyn Fifield, ‘Regulation of Conscientious Objection to Abortion An International Comparative Multiple-Case Study’ (2017) Health Hum Rights 19(1): 55–68. 19 See https://www.splcenter.org/sites/default/files/adf-ap-and-others-v-france-echr-brief.pdf, p.8, Para 36. 20 CARE’s written evidence is available at: www.parliament.scot/S4_EducationandCultureCommittee/Children%20and%20Young%20People%20(Scotland)%20Bill/CAREforScotland.pdf 21http://www.parliament.scot/S4_EducationandCultureCommittee/Children%20and%20Young%20People%20(Scotland)%20Bill/SchoolhouseHomeEducationAssociation.pdf

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unfounded. This raises the issue that more scrutiny has to be given to any draft law and especially, their compliance with actual international legal obligations. Accountability What more could the Scottish Parliament do to ensure that international treaties, for example, the United Nations Convention on the Rights of the Child (UNCRC) and other international human rights obligations are being followed in Scotland? Parental Rights 38. The Parents right to decide on their children’s education is protected under Article 18(4) of the International Covenant in Civil and Political Rights that equips them with the right to ‘ensure the religious and moral education of their children in conformity with their own convictions.’ This right is often neglected when the state introduces a school curriculum that overrides those wishes, for example incorporating sexual education classes, without giving the parents an option to opt out their children from such curriculum. This is important when considering, for example, the demands of the Time for Inclusive Education campaign (the TIE campaign) and the Scottish Government’s LGBTI Inclusive Education Working Group (the Working Group) which involve promoting a moral education that does not conform with the convictions of some parents. The difficulty is compounded when a parent chooses to send their child to a faith school. Any requirement placed on teachers to acquiesce with and promote a worldview which is wholly at odds with their own religious worldview and even the religious ethos of the school would be problematic. 39. The Scottish Parliament should respect the right of parents to choose the type of education their children receive. Additionally, it should respect the rights of parents to have their children educated in accordance with their religious and philosophical convictions. These rights must be meaningful with real choice contained with the Scottish education system to ensure they are respected. The Right to Life 40. Finally we would draw the Committee’s attention to the right to life of all children that continues to be neglected. Children at risk of abortion also have human rights.

• The right to life is protected under Article 6(1) of the International Covenant on Civil and Political Rights (ICCPR) that states ‘Every human being has the inherent right to life.’

• The right to life of the unborn is recognised in Article 6(5) of the ICCPR where it says that

‘Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.’

• The right to life of the unborn is further protected in Article 1 of the UN Convention on the

Rights of the Child (UN CRC) in that the provision defines a child as ‘every human being below the age of eighteen years.' The right is not dependent on the birth status of the child.

41. Every life-and-death decision for a mother and her unborn baby must comply with four key principles of international human rights law: Inclusion – human rights apply to absolutely everyone, including the child 'before as well as after birth'. Inherency – rights are inherent in each human being. Neither governments nor courts can confer or withhold human rights. The child's rights pre-exist birth – they 'inhere' in the child's humanity, they inhere in her mother's humanity. Equality – some human beings cannot be 'more equal' than others – thus the child at risk of abortion has the same right to life as every other member of the human family. Indivisibility – the rights of a member of one set of

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vulnerable human beings cannot be sacrificed for the rights of a member of another more powerful set. It is not the state of being independent or achieving a particular size or age or power that confers human rights, it is simply being human. This is the irrevocable legal basis of all human rights.22 42. This raises serious concerns about Scotland’s current abortion law and in particular in cases where viability of life is strong. Most European states have a 12 week limit on abortion. The 24 week limit in Scotland is out of line with the European norm. The right to life of all children should be protected by the Scottish Parliament regardless of their birth status. However, there is an overwhelming case at the very least to review and reduce the current 24 week limit to the European norm of 12 weeks. Moreover, there is a positive obligation on states under the ECHR to protect human rights and this duty should be applied in the case of every child where life is viable regardless of birth status. 42. In cases of disability the situation is even more concerning. According to the law children with disabilities in Scotland can be aborted right up to term. This is wholly unacceptable and represents legalised discrimination against disabled people and denial of their most fundamental human right.

Conclusions

43. The next year of negotiations surrounding leaving the EU and the years following Brexit should be used to ensure that human rights that were protected under the EU law are adequately protected with the UK domestic law and Brexit does not become the highway to restriction of human rights. The debates on human rights surrounding Brexit should also be used to revisit the question of the protection of certain neglected human rights, for example, of the right to FoRB and what else can be done to strengthen the protection. As demonstrated in this submission, the right to FoRB would greatly benefit from extra protections, for example, by way of introducing a formal mechanism of reasonable accommodation of religious belief in the workplace.

44. Additionally it offers the opportunity to reassess our approach to human rights, to adopt more robust scrutiny of proposed legislation and to return to a more genuine interpretation of the conventions. Fundamental rights such as the rights of parents to choose the type of education for their children and the right to life for all members of the human family have been neglected. If we are to create a truly free and fair society orientated towards the common good, these rights must be reprioritised.

22 Thomas Finegan. ‘International human rights law and the “unborn”: texts and travaux préparatories,’ Tulane Journal of International and Comparative Law, 89-126 (2016).

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Submission from Chest Heart & Stroke Scotland

Background

Chest Heart and Stroke Scotland represents the significant proportion of Scotland’s population – around one in ten – who are affected by stroke, or by heart or lung disease. These are frequently diseases of inequality, with key risk factors such as poverty, air quality, obesity, inactivity, smoking and drinking all more prevalent in less affluent areas where there are correspondingly higher rates of these long-term conditions and reduced life expectancy.

Awareness and exercise of human rights is a critical part of empowering people and enabling them to firstly reduce their risks of poor health, or be treated with dignity and respect if they are unwell. Chest Heart & Stroke Scotland is a signatory to the new Scottish Declaration on Human Rights, with the following statement:

“Human Rights matter because they remind us that we all have basic rights and freedoms that belong to every person in the world, from birth until death. They apply regardless of where you are from, what you believe or how you choose to live your life. They can never be taken away, although they can be restricted and violated. They remind us at Chest Heart & Stroke Scotland that when we carry out the work we do we are working with people and their lives - not just a condition, not a policy, not a statistic, not just a problem to be solved. They matter because they protect us from the worst that we can do to one another - and highlight the joy and positive impact we can have. Human Rights illuminate the respect and humanity we can show each other.”

We welcome this opportunity to contribute to the Committee’s Inquiry into Human Rights, whilst we are ourselves in the process of incorporating a human rights approach throughout our organisation, from service delivery through to campaigning.

Participation and engagement: Can the Scottish Parliament empower people to make them more aware of their rights under domestic and international human rights law and to build a strong human rights culture in Scotland?

Empowering people to understand and use their human rights is key to building a human rights culture in Scotland. There is a complex landscape of legislation, governance and scrutiny in place across Scottish, UK and international levels, however people of course remain at the centre of human rights and it is important that the inherent simplicity of human rights is not lost when translating the rhetoric to the public.

Awareness of what human rights are and how they impact on individuals is low, as evidenced by recent research for the Scottish Human Rights Commission which found that while 42% of people over 16 in Scotland are supportive of rights, the majority remain either conflicted, opposed or disengaged and have low detailed knowledge of rights23.

The Scottish National Action Plan for human rights (SNAP) is driving forward the culture change that is required, and includes a welcome focus on health and social care issues, including disability, rights,

23 http://www.scottishhumanrights.com/media/1754/building_a_human_rights_culture_scotland.pdf

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social care, dementia and mental health. By making it meaningful to everyone, scrutiny of whether human rights are being met would begin at an individual level and filter up, rather than being reliant on the top-down systems in place.

Scottish Parliament has an important practical and enabling role in supporting this culture change, which is led at present by the Scottish Commission on Human Rights, through SNAP. Fuller engagement of citizens in the procedures and processes of Parliament would make these more meaningful, allowing Parliament to benefit from lived experience, and for people to have greater involvement in influencing legislation and policy making. Committees for example should routinely engage with citizens on the issues under consideration.

Parliament cannot do this in isolation; organisations such as Chest Heart & Stroke Scotland have an important role to play in providing a bridge between the legislature and the people it represents. Through the Cross Party Groups which we support we always ensure that meetings include the lived experience of people affected by long-term health conditions. The recent Inquiry by the Cross Party Group on Heart Disease & Stroke into Atrial Fibrillation put people at the centre, with membership of an Advisory Panel, round-table forums, and a patient survey. Chest Heart & Stroke Scotland continues to support this self-advocacy through our Voices programme which supports and enables people to become confident representatives within formal decision-making forums, for example as patient representatives on Health Boards.

Parliamentary procedure and process: What further steps can the Scottish Parliament take to ensure that people’s human rights are being taken into consideration when the Scottish Government and public authorities are creating policies? Chest Heart & Stroke Scotland commends the role of the Equalities and Human Rights Committee, however believes that there is an oversight role for all Parliamentary Committees in ensuring human rights are mainstreamed across national policy making. The expertise and capacity of MSPs in taking a human rights based approach to scrutinising legislation and policies needs to be further developed, to ensure consistent and rigorous monitoring of the Scottish Government’s responsibilities. This may need to be reinforced by increased resources to allow for expert analysis to be available on the human rights aspect of issues under scrutiny. For example, the right to health is a core human right, and so the Committee on Health and Sport’s work should take a human rights based approach in all its work. However the Committee’s response to this inquiry on human rights is evidence itself of the need for it to develop greater understanding and expertise on human rights. The response highlights that there is a ‘general absence of awareness of the rights and how they could or perhaps should apply’. In addition to its legislative scrutiny the Health and Sport Committee undertakes a significant number of inquiries in a range of issues but perhaps does not routinely consider those from a human rights perspective. A more systematic process should be adopted, built on a greater understanding of both ‘why’ and ‘how’.

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The adoption of a Rapporteur system across all Parliamentary committees which would lead to key human rights expertise being embedded within each Committee, as advocated by the Scottish Human Rights Commission24, would help address this. As described above, the participation and engagement of people with lived experience of the issues being addressed will make Parliamentary procedure and process around human rights more meaningful. Accountability: Could the Scottish Parliament do more to ensure that international human rights laws, for example, the United Nations Convention on the Rights of the Child (UNCRC) and other international human rights obligations are being followed in Scotland?

Chest Heart & Stroke Scotland supports the Scottish Human Rights Council’s views that the Scottish Parliament can play a significant role in progressing the realisation of human rights by overseeing Scotland’s obligations in line with international human rights bodies like the UN’s Universal Periodic Review (UPR) and Treaty Bodies. In particular, the Scottish Parliament’s Committees’ role could extend to: Scrutinising reports from the Scottish Government to UN treaties bodies on the implementation

of human rights

Directly engaging with treaty bodies by sending relevant reports, and relevant representatives to hearings.

Monitor the Scottish Government’s response to the concluding observations of UN treaty bodies and follow up recommendations

Engage with the regular review process by the UN Human Rights Council of Scotland’s council with human rights obligations.

Katherine Byrne Policy Manager, Chest Heart & Stroke Scotland March 2018

24 http://www.scottishhumanrights.com/media/1694/shrc-parliament-review-commission-apr-2017.doc

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SUBMISSION FROM EDINBURGH TENANTS FEDERATION This is the response from Edinburgh Tenants Federation to the call for evidence from the Equality and Human Rights Committee about how the Scottish Parliament could embed equality and human rights issues better into the way Parliament works.

Introduction Edinburgh Tenants Federation (ETF) is the umbrella organisation for tenants’ and residents’ organisations in Edinburgh. In partnership with the Scottish Human Rights Commission (SHRC) and the Participation of Practice and Rights (PPR) in Belfast and as part of Scotland’s National Action Plan for Human Rights (SNAP), we set up the Housing Rights in Practice project, using a human rights-based approach to influence housing conditions with a community in Leith.

The project worked with residents of West Cromwell Street, Citadel and Persevere Courts, using the PANEL principles and FAIR process by supporting residents to carry out participatory action research to identify issues they were experiencing and framing these in human rights terms. Residents set benchmarks for improvements and presented their report to Council officers and councillors.

As a result, a major investment programme in housing conditions was announced and residents’ representatives have been meeting with City of Edinburgh Council officers to influence decisions in the works taking place. The next stage is about to commence with another survey to measure the impact of the work.

Further to this, ETF is currently in the early stages of using this approach with sheltered housing tenants to make them aware of their rights to bring about positive change to their lives.

We think this example of using a human rights based approach in practice could be developed by the Scottish Parliament in its own processes.

Participation and Engagement Edinburgh Tenants Federation (ETF) have a number of suggestions the Scottish Parliament could use to embed equality and human rights more in its work.

• Make it easy for people to participate in the way they want to, not in the way you want them to. Meet people where they’re at and don’t expect them to come to you.

Edinburgh Tenants Federation Norton Park 57 Albion Road Edinburgh EH7 5QY 0131 475 2509 info@edinburghtenants.org.uk www.edinburghtenants.org.uk

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Be flexible in your participation methods. Be informal if that’s how people feel more able to contribute. Celebrate this shift in culture and let everyone know about it.

• Empower people to make them more aware of their rights under domestic and international human rights law.

• Frame the work of the Scottish Parliament in human rights terms.

• Change the language of everything you do to embed human rights terms. If the language of human rights – with the state as duty bearers and citizens are rights holders is embedded from the beginning it can be transformative to shift the message that the Parliament is accountable to the people. If this is clear it will make human rights more accessible for all.

• Educate elected officials, professionals and citizens with human rights knowledge.

• Embed human rights in all the work the Scottish Parliament and Government does.

• Support SNAP and its principles to build alliances between organisations, politicians at all levels and citizens.

• Use the PANEL principles, developed by the Scottish Human Rights Commission (SHRC). Participation – everyone has the right to participate in decisions and information is in a form and language that can be understood. Accountability – effective monitoring of human rights standards and remedies for human rights breaches. Non-discrimination and equality – prohibit, prevent and eliminate all forms of discrimination and prioritise the most vulnerable. Empowerment of rights holders – individuals and communities should know their rights and be supported to participate in the development of policies and practices which affect their lives. Legality of rights – rights are legally enforceable and linked to national and international human rights law.

• Awareness raising of human rights to public bodies is also necessary. As ETF has been using a human rights based approach we have realised that public bodies (in this case the local Council) were not aware of their international human rights responsibilities and that they can be held accountable for breaches.

• It would be beneficial to have a learning programme for Scotland including what rights are and how to claim them.

• All of these will help to transform a human rights culture for Scotland. Parliamentary Procedure and Process

• Use the PANEL approach (as mentioned above in participation and engagement).

• Use the FAIR approach to gather people’s perspectives. Don’t rely on State statistics for evidence. Be clear what you’re measuring and for what purpose. Hear the richness of people’s stories. Facts – what is the experience of individuals involved and the important facts to understand. Analyse rights – develop and analyse the human rights at stake.

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Identify responsibilities – identify what needs to be done and who is responsible for doing it. Review actions – make recommendations for action and later recall and evaluate what has happened as a result.

• Embed human rights monitoring fully into the National Performance Framework.

• A human rights based approach should be incorporated into the national performance framework process across all fields. For example, the current consultation by the Scottish Housing Regulator does not mention framing housing monitoring in international human rights standards. If the systems do not measure how human rights might work then how can public bodies be held accountable? This makes it all the more difficult for citizens to claim their rights.

Accountability

• Incorporate international human rights direct into Scots law.

• From our experience public bodies do not seem to know about human rights so do not feel the need to be accountable. This has made it difficult for the community we have worked with (the rights holders) to hold the public authority (the duty bearer) to account. In our project, residents faced a denial that poor housing conditions were breaches of human rights.

• Human rights need to be incorporated into policies and procedures to achieve the accountability of public bodies. If this does not take place then how are public bodies to be held to account?

• A human rights based approach should be used by the Scottish Parliament when making budget decisions. Imagine if a rights based approach was taken to the Scottish Budget? Would we still have homelessness? This could be really transformative for Scotland.

Additional comments Rights impact on each other. Improving one right may have positive impacts on other rights. For example, the project in Leith focussed on housing and the Adequate Standard of Living in particular the habitability aspect of the Right to Adequate Housing. By improving housing conditions we have begun to find a positive impact on people’s health. We have seen an improvement in particular in mental health. ETF will shortly be carrying out a monitoring survey with residents to measure this impact in full.

Further information can be found:

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Housing Rights in Practice case study www.scottishhumanrights.com/rights-in-practice/case-studies/

Leith project initial video https://www.youtube.com/watch?v=CrSOxT6FUPE

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SUBMISSION FROM NHS HEALTH SCOTLAND

NHS Health Scotland is a national Health Board working with public, private and third sectors to reduce health inequalities and improve health. Our corporate strategy, A Fairer Healthier Scotland, sets out our vision of a Scotland in which all of our people and communities have a fairer share of the opportunities, resources and confidence to live longer, healthier lives. Our mission is to reduce health inequalities and improve health. To do this we influence policy and practice, informed by evidence, and promote action across public services to deliver greater equality and improved health for all in Scotland. Contact Details Nick Hay, Senior Communications and Engagement Officer We are content for our response to be made available to the public and to be contacted in the future. Key Messages: - Adopting a Human Rights Based Approach to Scottish Parliament

procedure would help ensure an empowering process that makes people more aware of their rights under domestic and international human rights law and supports them to participate in the work of the Parliament.

- Ensuring the PANEL principles (Participation, Accountability, Non-discrimination and equality, Empowerment and Legality) underpin the work of the Parliament would help embed a human rights based approach.

- Health Inequalities are a potential proxy measure of overall inequality. Health Inequalities Impact Assessments could form a useful part of any new process or procedure. They would help ensure the principle of non-discrimination was adhered to in Parliamentary procedure.

- Specific risks attached to the triggering of leaving the European Union may provide a useful focus for new approaches to testing accountability.

RESPONSE FROM NHS HEALTH SCOTLAND

1. Adopting a human rights based approach25 is a practical way of making sure that the rights of people who participate in any engagement with the

25 http://www.scottishhumanrights.com/rights-in-practice/human-rights-based-approach/

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Scottish Parliament are not only aware and informed, but can influence process and outcome. The PANEL principles in particular (Participation, Accountability, Non-discrimination and equality, Empowerment and Legality) provide the basis of a human rights based approach. This will also go some way towards meeting the ambition of culture change desired.

2. NHS Health Scotland26 has recently tested Improvement approaches to embedding human rights in our work. We would be happy to share our learning from this with the Committee in due course.

3. NHS Health Scotland produced a range of resources setting out how the Right to Health and a rights based approach can strengthen work to reducing health inequalities These may be a useful resource to support the Committee to understand how such an approach could add strength in other areas.

4. A Health Inequalities Impact Assessment (HIIA)27 is a tool we promote for use during any planning to assess the potential of any policy, plan, proposal or decision to reduce or increase health inequalities. Doing an HIIA meets a range of legislative requirements, including the requirement to conduct an Equality Impact Assessment (EqIA) but also including both health impact and human rights impact measurement.

5. The SNAP Health and Social Care Action Group28 website hosts a number of resources and useful case studies which the Scottish Parliament may find helpful in designing or co-producing their own engagement processes.

6. In making itself accountable to both the participants of any parliamentary processes, but also to external review or scrutiny, the Parliament may wish to consider using the human rights framework known as the FAIR approach29. The basic steps of the FAIR approach are: Facts: What is the experience of the individuals involved and what are the important facts to understand? This also supports the ‘P’ and ‘E’ of the human rights principles. Analyse rights: Develop an analysis of the human rights at stake or which are being engaged. This helps operationalise the ‘L’ and ‘N’ of the principles of human rights. Identify responsibilities: Identify what needs to be done to ensure the upholding of rights and who is responsible for doing it. This supports the ‘A’ of the principles. Review actions: Make recommendations for action and later recall and evaluate what has happened as a result. This further supports the ‘A’ of a PANEL approach.

26 http://www.healthscotland.scot/health-inequalities/the-right-to-health 27 http://www.healthscotland.scot/tools-and-resources/health-inequalities-impact-assessment/the-hiia-process 28 http://www.healthandsocialcare-snap.com/resources 29 http://careaboutrights.scottishhumanrights.com/section1-page03.html

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7. Universal Human Rights30 remain paramount but, as the Committee has suggested, a number of risks to access to rights will be triggered by the impact of leaving the European Union. The Health and Social Care Alliance Scotland have helpfully summarised a number of particular areas of focus. in these proposed changes31, including impacts on inequality and public health.

30 http://www.un.org/en/universal-declaration-human-rights/ 31 https://www.alliance-scotland.org.uk/wp-content/uploads/2018/01/2018ResponseOnImpactOfBrexit.pdf

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Equalities and Human Rights Committee

Human Rights and the Scottish Parliament

Summary of Written Evidence

Introduction This paper summarises the written evidence received for phase two of the EHRiC Committee’s inquiry on Human Rights and the Scottish Parliament. A call for evidence on the Human Rights Inquiry was issued on 21 January 2018 and closed on 16 March 2018. The Committee received 35 responses to its call for evidence. The majority of submissions were from third sector organisations. The Committee received responses from the Scottish Human Rights Commission (SHRC) and the Equality and Human Rights Commission (EHRC), and one other public body, NHS Health Scotland. There were eight responses from individuals. The Committee also wrote to the other Parliamentary committees and the Presiding Officer. Their responses are not included in this summary. Overview The Committee’s inquiry has been welcomed by the respondents. The submission from the Human Rights Consortium Scotland (HRCS), a joint response from a number of its members1, states:

“We greatly welcome the Equalities and Human Rights Committee’s (EHRiC) consideration of the Parliament’s role around promoting human rights in Scotland. We further note that in doing so, the Committee has the support of the breadth of Scottish civil society”.

The Scottish Youth Parliament (SYP) said:

1 Amnesty International Scotland, Nourish Scotland, Health and Social Care Alliance Scotland (the ALLIANCE), SCVO, Advocard, Women for Independence, Scottish Independent Advocacy Alliance, Alcohol Focus Scotland, MND Scotland, C-Change Scotland, The Jimmy Reid Foundation, Inclusion Scotland, the Scottish Youth Parliament, Coalition of Racial Equality and Rights (CRER), and CLAN Childlaw

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“We believe that EHRiC is really leading the way and demonstrating true ambitions in terms of ensuring human rights are at the heart of the Scottish Parliament”.

The Scottish Human Rights Commission (SHRC) referred to increasing recognition of national parliaments in protecting and promoting human rights and said:

“Parliaments are cornerstones of national protection systems. They play a critical role in ensuring government compliance with their national and international human rights obligations and share a responsibility, with other branches of the State, to protect, respect and fulfil human rights”.

There is broad consensus in the submissions of how the Scottish Parliament can ensure it protects and promotes human rights in Scotland. Many submissions also refer to existing work and principles that the Scottish Parliament can build on. The responses to the Committee’s three themes of the call for evidence focused on: Participation and engagement

• Involve people with lived experience from diverse backgrounds • Have meaningful and deliberative participation, rather than one-off

events • Increase awareness through education and awareness raising

campaigns • Engage with civil society as well as national and international

stakeholders such as the Council of Europe and the UN • Empower people so that they can exercise their rights

Parliamentary procedure and process

• Build on existing approaches and principles to embed human rights across the parliament

• Training for MSPs their staff, and parliamentary staff • Bring in expertise when considering human rights on specific issues • Use of committee Rapporteurs to provide a point of expertise on each

subject committee • Improve pre-legislative and post-legislative scrutiny

Accountability

• Monitor compliance with international treaties, response to concluding observations and the Universal Periodic Review (UPR)

• Proactively take part in UN treaty reporting and assessment • Promote the full incorporation of international human rights law into

Scots law.

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Challenges Many of the submissions also identified significant challenges in the promotion and protection of human rights in Scotland - the impact of Brexit, the incorporation of international human rights law, the balancing of different rights, and the role of the Scottish Human Rights Commission. Brexit The UK’s withdrawal from the EU was mentioned in several submissions. There is a concern that rights may be weakened post-Brexit (for example, the ALLIANCE, Human Rights Consortium Scotland, Scottish Community Development Centre). Dr Katie Boyle, Senior Lecturer, School of Law, University of Roehampton said:

“The Scottish Parliament could lead the way both across the UK and internationally in its approach to fostering a human rights culture across its remit that seeks to ensure rights and remedies are protected and enhanced in a post-Brexit landscape. In fact, clause 5(2)(b) of the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill seeks to retain many of the rights and remedies in Scots law after withdrawal as would have been available before withdrawal, including the right of the courts to strike down legislation incompatible with the Charter and EU general principles. Nonetheless, other routes to remedy, such as access to the Court of Justice of the European Union remains uncertain and so supervision and reflection on the potential impact remains an ongoing necessity”.

Incorporation of international human rights law Many of the submissions expressed a desire for the incorporation of international human rights law into Scots law (for example, People First, HRCS, SHRC, SYP). Dr Boyle wrote about the split between different rights in Scotland and the UK. Civil and political rights, such as the right to a fair trial and the right to life, are protected under the legal system under the Human Rights Act 1998 and the European Convention on Human Rights. Economic, social and cultural rights, such as health, housing and social security, are not protected under the legal system. Dr Boyle argues that this is out of step with constitutional arrangements elsewhere, and creates ‘accountability gaps’ where some rights are not protected. While the UK is bound by international treaties on human rights, they are not enforceable legal obligations unless incorporated into domestic law. The EHRC referred to the First Minister’s Advisory Group on Human Rights Leadership, which will consider the wider incorporation and enhancement of human rights in Scotland. The EHRC said it would expect EHRiC and other Committees “to actively engage with the recommendations and comments of the Advisory Group”. Balance of rights

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A number of submissions called for the Scottish Parliament to focus on specific rights or the rights of specific groups. It is argued that some rights are not being upheld, or they are competing against other rights. Examples include:

• Right to freedom of religion or belief (CARE2) • Right to life for the unborn child (CARE, CPO3) • Rights for older people (Scottish Care4) • Assisted dying and dying with dignity (Friends at the End and Dignity in

Dying) • Rights for Gypsy/Travellers (Ken MacLennan) • Rights for Romanian nationals in Scotland (Friends of Romano Lav) • Following recommendations made by the UNCRC, such as:

o Raising the age of military recruitment to 18 (Forces Watch and Quakers in Scotland)

o Allowing children and young people to opt out of religious observance in schools without parental permission (Humanist Society Scotland).

Strengthening the role of the Scottish Human Rights Commission The HRCS called for the increased resourcing of the SHRC. It said that a lack of capacity has hampered its work. As an example it says the Commission has the statutory power to intervene in court cases to add understanding to the court’s deliberations around human rights. However, the Commission has not been able to make use of this power. Carole Ewart said that:

“The SHRC’s powers should be extended to address the unmet need for free advice on human rights and be given the power to take forward cases. Consequently, there needs to be an increase in its budget. The Committee should instigate legal reform by bringing forward an amendment to the 2006 Act”.

How the Scottish Parliament can promote and protect human rights in Scotland This section focuses on the responses to the Committee’s questions in its call for evidence. Participation and engagement • How the Scottish Parliament can empower people to make them

more aware of their rights under domestic and international human rights law and to help build a strong human rights culture in Scotland?

2 Christian Action Research and Education 3 Catholic Parliamentary Office 4 Voice of the independent care sector

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Some of the submissions described how Scotland’s National Action Plan for Human Rights (SNAP), launched by the SHRC in December 2013, has been leading a culture change on human rights in Scotland. Some of the submissions said that there is now a role for the Scottish Parliament to build on the work of SNAP, to ensure that people can have greater involvement in influencing legislation and policy making (eg, Chest Heart and Stroke Scotland, ALLIANCE). Increase awareness through education A number of submissions called for awareness raising of human rights. This will allow people to participate in discussions around human rights, and empower them to challenge public bodies when their rights have been infringed. See for example, the joint submission from Glasgow Council for the Voluntary Sector (GCVS), Scottish Council on Deafness (SCoD), Voluntary Action Scotland (VAS) and Volunteer Glasgow (VG); People First; SYP; the ALLIANCE. The ALLIANCE referred to a YouGov poll in 2015 that showed: • One in five adults in Scotland (22%) thought that human rights are

designed to protect minority groups, rather than everybody • Over two in five people (44%) believed that human rights had little bearing

on their everyday life. Recent research for the SHRC (2018) found that while 42% of people over 16 in Scotland are supportive of rights, the majority remain either conflicted, opposed, or disengaged, and have low detailed knowledge of rights. Carole Ewart contrasted the evidence in the YouGov poll with an Ipsos MORI poll on Freedom of Information (November 2015). This showed that 85% of the public have an awareness of FOI rights in Scotland, and that 77% of people agreed it gave them more confidence in the decisions of Scottish public bodies. Dr Boyle referred to a UN Human Rights Committee recommendation that the UK should introduce awareness raising campaigns aimed at promoting respect for human rights and tolerance for diversity. Dr Boyle said there could be a coalition of partners to develop the campaign – the Scottish Parliament, Scottish Government, civil society organisations and National Human Rights Institutions. People with lived experience A number of submissions stressed the importance of involving people with lived experience in helping to shape legislation and policy (eg Chest Heart and Stroke Scotland ALLIANCE, HRCS, People First, SYP, Edinburgh Tenant’s Federation).

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Together, Who Cares, and SYP also stressed the importance of involving children and young people, not just on issues that are directly to related to them, but on broader subjects such as housing and transport. Examples of supporting Committees to include the views of those with lived experience were also provided. For example, the ALLIANCE provided support to the Scottish Parliament’s Health and Sport Committee to speak to them about NHS governance and their experiences, in March 2017. Meaningful participation The submissions emphasised that any participation with the Scottish Parliament must be meaningful and inclusive. The SYP said that participation should be co-designed and ensure accessibility in terms of location, timing, resources and inclusion. The HRCS said that participation should not be a one-off event, but that opportunities should be many and varied, with full information and the knowledge that views will be respected and taken seriously.

Engage with others Many of the submissions stressed the importance of engaging with others in order to build a human rights culture in Scotland. It was suggested that Committees should consider how they engage with individuals in each part of their work programme (HRCS). The SYP said that MSPs should work together with their MSYPs. As an example of good practice, they referred to the EHRiC and SYP’s joint response to the Hate Crime review in November 2017. It was also proposed that the Scottish Parliament should engage nationally and internationally with a network of relevant stakeholders, such as the Council of Europe and United Nations (Dr Boyle, EHRC, the ALLIANCE, HRCS). In particular, the HRCS said:

“This should include drawing on their expertise in advising on policy and law, as well as Ministers taking part in treaty monitoring sessions. For example, the UN Special Rapporteur on the Right to Food Hilal Elver has significant expertise around this issue which could directly inform the upcoming Good Food Nation Bill”

Third sector support Some of the submissions said that there should be more funding for civil society organisations, to provide the capacity for them to engage with the UN treaty monitoring process and to strengthen and promote a human rights culture in Scotland (eg HRCS, People First).

Parliamentary procedure and process

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• What further steps the Scottish Parliament could take to ensure that people’s human rights are being taken into consideration when the Scottish Government and public authorities are creating policies?

Building on existing principles and approaches The need for the Scottish Parliament to embed human rights across its work was a strong theme in the submissions (eg, EHRC, SHRC, Dr Boyle, SYP, Chest Heart and Stroke Scotland). References were made to existing approaches and principles that the Scottish Parliament could build upon. This would not be just for committees, but for work across the Parliament. The EHRC referred to the SHRC’s submission to Commission for Parliamentary Reform which details how the Scottish Parliament can be a human rights guarantor. It makes reference to the Belgrade Principles, which provide guidance on how NHRIs and parliaments should interact and cooperate. A recent development is the Scotland Declaration on Human Rights, supported by 140 organisations and states 4 key principles that must apply in all decisions around human rights:

• No going back • Progression • Transparency • Participation

The HRCS said that these principles are relevant to the remit of the inquiry and encourages the Committee to adopt a “bold and deliberative approach to human rights”. Right Here, Right Now is the Scottish Youth Parliament’s national campaign on young people’s rights. The campaign aims to ensure young people are aware of and understand their own rights and are empowered to take action. It also calls for decision-makers to take a human rights-based approach to all policy making. The EHRC also suggested that the Scottish Parliament should look at increasing the use of Equality and Human Rights Impact Assessments (EQHRIA). The EHRC and SHRC completed a joint project on this and developed resources for public bodies. Fife and Renfrewshire Council have been piloting the resources.

“We believe that EQHRIAs have the potential to enable equality and human rights thinking to be embedded into the policies, practices, procedures and priorities of public bodies” (EHRC).

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Reference was also made to the PANEL principles, which breaks down a human rights-based approach into practice. The FAIR approach was also referred to and is a way of conducting an EQHRIA. Training There were repeated calls in the submissions for MSPs, their staff, and parliamentary staff to have training on international human rights law. It was also suggested that Committees could have subject-focused training. For example, HRCS, EHRC, the ALLIANCE, Chest Heart and Stroke Scotland. Expertise It was also suggested that Committees should involve experts around the implementation of human rights, for in-depth analysis of policy and law (eg HRCS, the ALLIANCE, Chest Heart and Stroke Scotland, Law Society Scotland). Expertise comes from those with lived experience, civil society organisations, and academia, as well as both the SHRC and EHRC. However, the ALLIANCE criticised the way in which the Scottish Parliament recently dealt with advice from the SHRC:

“We also urge the Committee to take a strenuous view of the extent to which the Parliament pay heed to the SHRC’s advice. We were very disappointed when the proposed amendments to the Social Security Bill which would have made the rights principle real by including a ‘due regard duty’ requirement were not accepted at Stage Two of the Bill. This amendment was supported by the SHRC with the express purpose that this would provide for a human rights-based approach to social security. The SHRC are Scotland’s experts on human rights – if the Parliament is to promote and progress human rights, we strongly urge the Parliament to pay great heed to those experts”.

The SHRC also suggested that the Committee should have permanent responsibility for human rights, and that consideration should be given to increasing resources “to ensure it can adequately deliver its mandate supported by specialised staff with expertise in human rights law and policy”. Committee Rapporteurs In its submission to the Commission on Parliamentary Reform, the SHRC proposed the appointment of Rapporteurs for each Committee. The SHRC said this would ensure mainstreaming of human rights and a consistency of approach to human rights scrutiny. This proposal was supported by some of the submissions, and that with adequate support and resources it could be an innovative approach (eg, Dr Boyle, the ALLIANCE, Chest Heart and Stroke Scotland). Legislative scrutiny A number of the submissions said that the Scottish Parliament should improve how it assesses legislation for its compatibility with human rights. There is a legal requirement under the Scotland Act 1998 for the Presiding Officer to

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make a statement on compatibility with the European Convention on Human Rights. Commenting on this practice, Dr Boyle said:

“This occurs through non-disclosed assessments by the Executive and the Presiding Officer of the Scottish Parliament before legislation is passed. There is a requirement for the relevant Minster and the Presiding Officer to make a statement of compatibility in relation to each bill being considered. However these limited reviews do not take the full body of international human rights law into consideration meaning that ESC rights, for example, are not regularly reviewed as part of the pre-legislative process. There would be scope for broadening the current pre-legislative scrutiny arrangements in order to ensure that all human rights are being taken into consideration across parliamentary business, by the EHRiC and by other committees. Effective human rights scrutiny by committees is a particularly important aspect of accountability in the parliament because the legislature is unicameral”.

The HRCS said:

“…the Committee should insist that the advice to the Presiding Officer on the human rights aspects of legislative competence is made public. Human Rights Impact Assessments of legislation by the Scottish Government should also be made public.”

There were also calls to improve post-legislative scrutiny. Social Care called for scrutiny of the Social Care (Self-directed Support) (Scotland) Act 2013. They argue that there is differential treatment for older people accessing self-directed support, and regret lack of post-legislative scrutiny. The ALLIANCE said that there will need to be post-legislative scrutiny of the Social Security (Scotland) Bill. The SYP said that more time would have to be built into the scrutiny process in order to adequately consider the human rights aspects of any proposal. It was also suggested that more information should be available in Scottish Government Policy Memorandums for Bills, such as references to international treaties on human rights (eg ALLIANCE, Law Society Scotland). The HRCS suggested there should be a Human Rights Impact Assessment on every piece of legislation. Accountability • What more could the Scottish Parliament do to ensure that

international treaties, for example, the United Nations Convention on the Rights of the Child (UNCRC) and other international human rights obligations are being followed in Scotland?

Monitor progress against international human rights There was strong support in the submissions for EHRiC and other subject committees to monitor compliance with international human rights law and the

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concluding observations made by UN treaty committees (eg, EHRC, SHRC, SYP, Dr Boyle, HRCS, ALLIANCE). The EHRC said that it would encourage subject committees to:

“…use international human rights treaties as the basis for their analysis of gaps in protection that need to be addressed in domestic policy and law, and the shadow reports of the statutory Commissions and Civil Society Organisations to inform their deliberations”.

The HRCS said that it welcomed the Scottish Government’s current approach to engagement with the UN treaty process. However, it argued that this could be more focused towards using these processes to bring about improvement, and that:

“…it is difficult to know what the Scottish Government will do, or do differently, as a result of the recent UPR process.”

It was also suggested that the Scottish Parliament should have a systemic approach to monitoring court judgments on human rights (HRCS, SHRC). Proactive involvement in UN treaty reporting and assessment There were also calls for the Scottish Parliament to be more proactive in the treaty reporting process. The SHRC said that it is important for MSPs to attend the UK’s UPR, and other regional and international human rights reviews, where Scotland’s compliance with international treaties is assessed. The EHRC said:

“One of our continuing challenges is therefore to develop and maintain momentum for implementation by Government. We see Parliament as having a vital role in this. Regular meetings, for example, with legal advisers, Committee staff and civil servant representatives of those Government departments responsible for treaty reporting and implementation allow an exchange of information and discussion of potential follow up to help foster the Government’s further engagement with human rights treaties”.

Incorporation The incorporation of international human rights law was identified above as one of the challenges in the promotion and protection of human rights in Scotland. It was a subject referred to in many of the submissions. There were calls for the Scottish Parliament to support the incorporation of international human rights law. The HRCS said:

“We urge the Committee to support the incorporation of UN treaties on rights into Scots law. This is one of the most far-reaching and

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important steps that this Parliament can take to make our law an international leader in human rights. We suggest that the Committee should discuss with the SHRC and the Scottish Government around the role that they specifically can play in progressing and preparing for incorporation of UN treaties into Scots law. We also urge the individual Committee members, as representatives of political parties, to consider what they can do to concrete support for this policy direction within their own party policy consideration structures”.

Dr Boyle said that there are different methods for incorporation, either as an overarching ‘constitutional statute’ or through legislation dealing with specific rights in specific areas. Examples around the world show that different approaches have been taken to protect and promote human rights standards. To consider an approach for Scotland, Dr Boyle said:

“Ideally a constitutional process around human rights change should be predicated by a participative, informed and inclusive process – achieved through a format such as a national conversation or a constitutional convention process”.

Nicki Georghiou SPICe Research 9 April 2018