A Human Rights Bill for Scotland – Consultation

October 2024. The Commissioner responded to the Scottish Government consultation on incorporation of additional UN human rights treaties into Scots law.

This response as originally submitted via the Scottish Government Consultation Hub.

What are your views on the proposed model of incorporation?

The Children and Young People’s Commissioner Scotland welcomes the commitment to introduce a new Human Rights Bill for Scotland. This will create a new human rights legal framework for Scotland and further embed human rights protections for children and young people into Scots Law.

In many ways, the UNCRC (Incorporation)(Scotland) Bill, originally passed in March 2021, is serving as a pathfinder for the Human Rights Bill. The challenge to the UNCRC Bill; the Supreme Court judgement of October 2021 and subsequent lengthy delays in reaching the reconsideration stage, mean that this consultation on the Human Rights Bill is closing before the Scottish Parliament has scrutinised the Scottish Government’s proposed amendments to bring the UNCRC Bill within competence and before there can be any certainty about the response of the UK Government to these amendments.

The devolved legislative context around human rights incorporation is technically complex. The experience to date of the UNCRC Bill has already had an impact on the approach to this Bill. It is critical that those shaping the Human Rights Bill have clarity on the parameters within which they are working and can provide transparency around all their considerations in relation to their preferred model of incorporation.

This is important, because as the Scottish Human Rights Commission has highlighted in their consultation response, there are alternative models of incorporation which can be considered.

Our comments on the Human Rights Bill consultation will, of necessity, be limited at this time, while we await the outcome of the reconsideration stage and determination on UNCRC incorporation. We will be pleased to work with the Human Rights Bill team and respond to further calls for input as the work develops.

We particularly welcome the responses to this consultation from the Scottish Human Rights Commission and the Human Rights Consortium Scotland, and by Together Scotland who have drawn on evidence from children and young people.

How do you think we should define the groups to be protected by the equality provision?

The mandate of the Children and Young People’s Commissioner Scotland extends to all children (all those up to the age of 18) and Care Experienced young people up to the age of 21.

We support the call from Who Cares? Scotland that Care Experienced people of all ages should be named in and explicitly protected by the equality provision. A naming approach will help to address the concern that Care Experienced people may not otherwise be sufficiently recognised in the broad category “other status”. A non-exhaustive listing approach including Care Experienced People, and which also includes the category “other status”, would be valuable.

What are your views on potentially mirroring these powers for the Children and Young People’s Commissioner Scotland where needed?

To effectively fulfil our role in protecting children’s human rights, the Children and Young People’s Commissioner Scotland (CYPCS) will need the necessary powers to robustly uphold human rights and challenge violations.

We anticipate that the approach taken to these powers could be similar to the Scottish Human Rights Commission (SHRC), but this will require consideration and nuance, as the enabling legislation for CYPCS and SHRC is different, and provides each organisation with different powers as a starting point. A power-by-power analysis, which looks at the enabling legislation of each institution will be needed.

We would be pleased to explore this with the Bill team in more detail.

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