About you
3. What is your name?
Name
Mhairi Snowden
Organisation details
6. Name of organisation
Name of organisation
(Required)
Human Rights Consortium Scotland
7. Information about your organisation
Please add information about your organisation in the box below
The Human Rights Consortium Scotland is Scotland’s civil society network to protect human rights. The Consortium has over 140 organisational members from across civil society, including health, disability and environmental organisations. We work in partnership with the Scottish Universities Legal Network on Europe (SULNE), funded by The Legal Education Foundation, on a project that aims to ensure that Scottish civil society has legal understanding and collaborates well around any impacts of UK withdrawal from the EU (see www.civilsocietybrexit.scot for more information).
Our members continue to be very concerned around the impacts of EU withdrawal on the communities that they represent and work with. Ten Scottish organisations including Scottish Rural Action, SCVO, Health and Social Care Alliance Scotland, and Scottish Environment LINK, recently published ‘Asking some important questions: a collation of Scottish civil society questions for UK and Scottish Governments after UK withdrawal from the European Union’ (https://hrcscotland.org/wp-content/uploads/2021/09/Final-Asking_some_important_questions_report-Sept-2021.pdf). We commend this to the Committee as a valuable resource about some of the sector’s key Brexit-related concerns.
Our members continue to be very concerned around the impacts of EU withdrawal on the communities that they represent and work with. Ten Scottish organisations including Scottish Rural Action, SCVO, Health and Social Care Alliance Scotland, and Scottish Environment LINK, recently published ‘Asking some important questions: a collation of Scottish civil society questions for UK and Scottish Governments after UK withdrawal from the European Union’ (https://hrcscotland.org/wp-content/uploads/2021/09/Final-Asking_some_important_questions_report-Sept-2021.pdf). We commend this to the Committee as a valuable resource about some of the sector’s key Brexit-related concerns.
Your views
8. What are your views on the policy statement?
Please provide your response in the box provided.
We welcome this opportunity to give views on the draft Policy Statement and Annual report related to ‘keeping pace’ powers in the European Union (Continuity) (Scotland) Act 2021.
• Steps to maintain alignment whenever this will advance rights and standards
We welcomed the inclusion in the Continuity Act of the clear purpose that these ‘keeping pace’ powers should be used to contribute towards ‘maintaining and advancing standards in, but not limited to, environmental protection, animal health and welfare, plant health, equality, non-discrimination and human rights, and social protection’. We note that the draft Policy Statement says:
‘In seeking to give effect to the purpose of the power under section 1(1) of the Act, that is maintaining and advancing standards in a range of policy areas, the Scottish Government will gather information to support, assess and consider the case for the regulations proposed. This will include, but not be limited to, close monitoring of activity in the EU institutions.’
We recognise that this Policy Statement is very specifically addressing the Continuity Act’s ‘keeping pace’ powers, as required by the legislation. Nonetheless, we welcome clarification and further detail in the final Policy Statement (or an accompanying Scottish Government publication) that places specific consideration of whether to use these fast-track keeping pace regulations firmly within the context of broader decision-making about whichever mode of legislative or other vehicle will best meet the core purpose of maintaining or advancing rights and standards. The process could usefully set out firstly, the Government approach and purpose to monitoring EU law and policy developments; the approach and criteria used to identify those that both relate to devolved competence and would serve to maintain or advance rights and standards in Scotland; and then thirdly, decision-making around which legislative or other vehicle will be used in order to do so. As currently written, this draft Policy Statement narrowly only addresses the approach to the question of whether or not to use these specific powers - not the broader and more important question of what steps the Scottish Government will take to monitor, identify and then develop the legislation or policy to align with EU law for the purpose of maintaining or advancing rights and standards by whichever means is most desirable. Will the Scottish Government, in the final Policy Statement or an accompanying document, publish details on its whole approach to ensuring alignment with EU law and policy for the purposes of maintaining or advancing rights and standards?
• Consultation on use of ‘keeping pace’ powers
We welcome the draft Policy Statement’s key principle of consultation based on the Scottish Government’s approach to outcome-based policy making. We note that it states ‘In considering use of the Continuity Act power, the Scottish Government will pro-actively engage with relevant stakeholders and local Government…’. We welcome clarity and confirmation: that ‘relevant stakeholders’ includes civil society organisations; of the forums or approaches that will be taken to such engagement including making sure that this is accessible and transparent; and that this engagement will be for the broader purpose of ‘keeping pace’, not only narrowly about these Continuity Bill powers.
• Recent consideration of using the powers
We note that the draft Report must include where any use of the power under section 1(1) has been considered by the Scottish Ministers during the reporting period. The draft Report states that there has been no such consideration.
One of the key areas of debate during passage of the Continuity Bill through Parliament was the openness of decision-making around these powers, and that this should not be simply left to the discretion of Ministers but that Parliament and other stakeholders should be a core part of the decision-making process. Scrutiny of decision-making about EU alignment is key, and there was recognition that this included decisions about when not to align with the EU (including using these powers) as well as decisions about when to do so. We would therefore seek clarity around this lack of consideration of the use of these powers. For example, what monitoring of EU law and policy has been carried out by the Scottish Government? Has there been any identified areas where EU alignment would be beneficial for maintaining and advancing rights and standards in Scotland? Is the lack of consideration of these powers been because of the clear decision to use another legislative vehicle, or there has been simply no discussion or work done about whether to use the powers in any way? Much greater clarity on the definition of ‘no consideration’ of the use of these powers would be valuable.
• Keeping up with the EU
Two briefings written by Professor Tobias Lock for the Human Rights Consortium Scotland outline a range of soft law and hard law recent and upcoming social policy developments in the EU, the first briefing published in March 2021 (https://www.civilsocietybrexit.scot/wp-content/uploads/sites/49/2021/04/CSBP-Keeping-Up-with-the-EU-March-2021.pdf) and another in August 2021 (https://www.civilsocietybrexit.scot/wp-content/uploads/sites/49/2021/09/Keeping-Up-with-the-EU-Briefing-August-2021-Tobias-Lock-15-Sept-2021.pdf).
We note that the EU Accessibility Act is an EU Directive that was transposed after the transition period ended and so does not apply to the UK. As Professor Lock states in the March briefing, ‘Its overall purpose is to create a more inclusive society and to facilitate independent living for disabled people’, and it ‘is a major attempt at improving the accessibility of certain products and services for disabled people.’ ‘The Accessibility Act will result in economic operators, i.e. those marketing products and those offering services, to comply with certain accessibility requirements. As a result, all products within the scope of the Accessibility Act, notably computers including their operating systems, ATMs, self-service machines (for ticketing or check in), smartphones, TVs, and the like will have to be manufactured to a common standard that ensures their accessibility for persons with disabilities. In a similar vein, service providers must provide certain services, notably transport services, banking services, e-books, ecommerce services, in a way that ensures they are accessible.’
Other developments we highlight from these briefings are the European Commission’s recommendation on energy poverty including recommendations for social policy measures to combat energy poverty. The European Commission is considering legislative proposals around combatting gender-based violence against women, including work harassment on grounds of sex.
We are unclear on the extent to which these EU law developments and others, fall within devolved competence, advance rights and standards in Scotland, and/or are impacted by UK Common Frameworks or the Internal Markets Act provisions. We welcome the Committee’s questioning of whether the Scottish Government has considered these areas of EU law development and others.
• National Mechanism for Monitoring, Reporting and Implementation
The National Taskforce on Human Rights Leadership, of which the Consortium was a member, included in its recommendations that:
‘Further consideration should be given to the development and strengthening of effective monitoring and reporting mechanisms at all levels and duties at both national and public authority levels, recognising that this will be important to secure better compliance with the framework. It should include consideration of a National Mechanism for Monitoring, Reporting and Implementation, as recommended by the First Minister's Advisory Group on Human Rights Leadership.’ (National Taskforce on Human Rights Leadership recommendations, available at: https://www.gov.scot/groups/national-taskforce-for-human-rights-leadership/)
One of the core purposes of this NMMRI was defined by the FM Advisory Group as ‘Monitoring the EU and reporting relevant rights developments to the Scottish Government, Scottish Parliament and the public for consideration of adapting any such developments within devolved areas of competence.’ (First Minister’s Advisory Group on Human Rights Leadership, available at: https://humanrightsleadership.scot/wp-content/uploads/2018/12/First-Ministers-Advisory-Group-on-Human-Rights-Leadership-Final-report-for-publication.pdf) The Scottish Government accepted the Taskforce recommendations. It would be valuable for the Committee to ask the Scottish Government about what steps it is now taking to consider the establishment of this Mechanism.
In particular, we highlight that ‘keeping up with the EU’ is about far more than only hard EU law but also about soft law and wider policy initiatives and developments. We welcome the Committee’s consideration of the extent to which the Scottish Government has, or is, putting in place the mechanisms required to consider this fuller picture.
• Advancing human rights
It is vital that the Scottish Parliament embrace every opportunity to advance human rights protections in law and human rights realisation in people’s lives. We strongly welcome the Parliament’s role as a human rights guarantor, and the strong cross-party support for human rights. For example, the unanimous passing of the Incorporation of the UNCRC (Scotland) Bill was an excellent example of the Scottish Parliament’s commitment to human rights leadership.
During the Brexit process, we regrettably lost a key pillar of human rights protections through the decision not to retain the Charter of Fundamental Rights. This consultation now comes in the midst of UK Government plans to ‘overhaul’ the Human Rights Act 1998 (HRA), and Bills such as the Nationality and Borders Bill, which roll back on rights protections. These regressive measures on rights protections in law threaten to significantly water down government accountability on human rights and reduce the ability of individuals to have a voice. The HRA has made law and policy across the UK and in Scotland better because it is a vital safeguard against any unintended infringements of an individual’s basic rights and freedoms. The HRA makes Scotland a safer and fairer place to live. Human rights are also a key pillar of devolution, and any steps that undermine the HRA at Westminster would undermine devolution itself.
The European Union is a signatory to the European Convention on Human Rights, as is the UK - it is this Convention that is incorporated directly into our law through the Human Rights Act. We welcome the Committee’s reiteration of their support for human rights and specifically for the ECHR and the Human Rights Act.
• The Istanbul Convention
34 member states of the Council of Europe have ratified the Council of Europe Convention on preventing and combating violence against women and domestic violence (the Istanbul Convention). In addition, 12 member states have signed it – along with the European Union itself. The Convention is the first legally binding international instrument on preventing and combating violence against women and girls at international level. It establishes a comprehensive framework of legal and policy measures for preventing such violence, supporting victims and punishing perpetrators.
The UK Government signed the Convention on 8 June 2012 but has not ratified it. The UK Government has said (https://www.parliament.uk/written-questions-answers-statements/written-question/commons/2016-07-15/42923) that it is committed to ratification but that amendments to domestic law – to take extra-territorial jurisdiction over a range of offences – are necessary before this can be done. There have been repeated calls for this ratification to be prioritised, including in a February 2015 report (http://www.publications.parliament.uk/pa/jt201415/jtselect/jtrights/106/106.pdf) by the Westminster Joint Committee on Human Rights.
The Committee could ask the Scottish Government about discussions it has had with the UK Government on what they are doing to urgently progress ratification of this important Convention. We will quickly fall behind other countries in the EU on rights and standards if we do not do so.
• Steps to maintain alignment whenever this will advance rights and standards
We welcomed the inclusion in the Continuity Act of the clear purpose that these ‘keeping pace’ powers should be used to contribute towards ‘maintaining and advancing standards in, but not limited to, environmental protection, animal health and welfare, plant health, equality, non-discrimination and human rights, and social protection’. We note that the draft Policy Statement says:
‘In seeking to give effect to the purpose of the power under section 1(1) of the Act, that is maintaining and advancing standards in a range of policy areas, the Scottish Government will gather information to support, assess and consider the case for the regulations proposed. This will include, but not be limited to, close monitoring of activity in the EU institutions.’
We recognise that this Policy Statement is very specifically addressing the Continuity Act’s ‘keeping pace’ powers, as required by the legislation. Nonetheless, we welcome clarification and further detail in the final Policy Statement (or an accompanying Scottish Government publication) that places specific consideration of whether to use these fast-track keeping pace regulations firmly within the context of broader decision-making about whichever mode of legislative or other vehicle will best meet the core purpose of maintaining or advancing rights and standards. The process could usefully set out firstly, the Government approach and purpose to monitoring EU law and policy developments; the approach and criteria used to identify those that both relate to devolved competence and would serve to maintain or advance rights and standards in Scotland; and then thirdly, decision-making around which legislative or other vehicle will be used in order to do so. As currently written, this draft Policy Statement narrowly only addresses the approach to the question of whether or not to use these specific powers - not the broader and more important question of what steps the Scottish Government will take to monitor, identify and then develop the legislation or policy to align with EU law for the purpose of maintaining or advancing rights and standards by whichever means is most desirable. Will the Scottish Government, in the final Policy Statement or an accompanying document, publish details on its whole approach to ensuring alignment with EU law and policy for the purposes of maintaining or advancing rights and standards?
• Consultation on use of ‘keeping pace’ powers
We welcome the draft Policy Statement’s key principle of consultation based on the Scottish Government’s approach to outcome-based policy making. We note that it states ‘In considering use of the Continuity Act power, the Scottish Government will pro-actively engage with relevant stakeholders and local Government…’. We welcome clarity and confirmation: that ‘relevant stakeholders’ includes civil society organisations; of the forums or approaches that will be taken to such engagement including making sure that this is accessible and transparent; and that this engagement will be for the broader purpose of ‘keeping pace’, not only narrowly about these Continuity Bill powers.
• Recent consideration of using the powers
We note that the draft Report must include where any use of the power under section 1(1) has been considered by the Scottish Ministers during the reporting period. The draft Report states that there has been no such consideration.
One of the key areas of debate during passage of the Continuity Bill through Parliament was the openness of decision-making around these powers, and that this should not be simply left to the discretion of Ministers but that Parliament and other stakeholders should be a core part of the decision-making process. Scrutiny of decision-making about EU alignment is key, and there was recognition that this included decisions about when not to align with the EU (including using these powers) as well as decisions about when to do so. We would therefore seek clarity around this lack of consideration of the use of these powers. For example, what monitoring of EU law and policy has been carried out by the Scottish Government? Has there been any identified areas where EU alignment would be beneficial for maintaining and advancing rights and standards in Scotland? Is the lack of consideration of these powers been because of the clear decision to use another legislative vehicle, or there has been simply no discussion or work done about whether to use the powers in any way? Much greater clarity on the definition of ‘no consideration’ of the use of these powers would be valuable.
• Keeping up with the EU
Two briefings written by Professor Tobias Lock for the Human Rights Consortium Scotland outline a range of soft law and hard law recent and upcoming social policy developments in the EU, the first briefing published in March 2021 (https://www.civilsocietybrexit.scot/wp-content/uploads/sites/49/2021/04/CSBP-Keeping-Up-with-the-EU-March-2021.pdf) and another in August 2021 (https://www.civilsocietybrexit.scot/wp-content/uploads/sites/49/2021/09/Keeping-Up-with-the-EU-Briefing-August-2021-Tobias-Lock-15-Sept-2021.pdf).
We note that the EU Accessibility Act is an EU Directive that was transposed after the transition period ended and so does not apply to the UK. As Professor Lock states in the March briefing, ‘Its overall purpose is to create a more inclusive society and to facilitate independent living for disabled people’, and it ‘is a major attempt at improving the accessibility of certain products and services for disabled people.’ ‘The Accessibility Act will result in economic operators, i.e. those marketing products and those offering services, to comply with certain accessibility requirements. As a result, all products within the scope of the Accessibility Act, notably computers including their operating systems, ATMs, self-service machines (for ticketing or check in), smartphones, TVs, and the like will have to be manufactured to a common standard that ensures their accessibility for persons with disabilities. In a similar vein, service providers must provide certain services, notably transport services, banking services, e-books, ecommerce services, in a way that ensures they are accessible.’
Other developments we highlight from these briefings are the European Commission’s recommendation on energy poverty including recommendations for social policy measures to combat energy poverty. The European Commission is considering legislative proposals around combatting gender-based violence against women, including work harassment on grounds of sex.
We are unclear on the extent to which these EU law developments and others, fall within devolved competence, advance rights and standards in Scotland, and/or are impacted by UK Common Frameworks or the Internal Markets Act provisions. We welcome the Committee’s questioning of whether the Scottish Government has considered these areas of EU law development and others.
• National Mechanism for Monitoring, Reporting and Implementation
The National Taskforce on Human Rights Leadership, of which the Consortium was a member, included in its recommendations that:
‘Further consideration should be given to the development and strengthening of effective monitoring and reporting mechanisms at all levels and duties at both national and public authority levels, recognising that this will be important to secure better compliance with the framework. It should include consideration of a National Mechanism for Monitoring, Reporting and Implementation, as recommended by the First Minister's Advisory Group on Human Rights Leadership.’ (National Taskforce on Human Rights Leadership recommendations, available at: https://www.gov.scot/groups/national-taskforce-for-human-rights-leadership/)
One of the core purposes of this NMMRI was defined by the FM Advisory Group as ‘Monitoring the EU and reporting relevant rights developments to the Scottish Government, Scottish Parliament and the public for consideration of adapting any such developments within devolved areas of competence.’ (First Minister’s Advisory Group on Human Rights Leadership, available at: https://humanrightsleadership.scot/wp-content/uploads/2018/12/First-Ministers-Advisory-Group-on-Human-Rights-Leadership-Final-report-for-publication.pdf) The Scottish Government accepted the Taskforce recommendations. It would be valuable for the Committee to ask the Scottish Government about what steps it is now taking to consider the establishment of this Mechanism.
In particular, we highlight that ‘keeping up with the EU’ is about far more than only hard EU law but also about soft law and wider policy initiatives and developments. We welcome the Committee’s consideration of the extent to which the Scottish Government has, or is, putting in place the mechanisms required to consider this fuller picture.
• Advancing human rights
It is vital that the Scottish Parliament embrace every opportunity to advance human rights protections in law and human rights realisation in people’s lives. We strongly welcome the Parliament’s role as a human rights guarantor, and the strong cross-party support for human rights. For example, the unanimous passing of the Incorporation of the UNCRC (Scotland) Bill was an excellent example of the Scottish Parliament’s commitment to human rights leadership.
During the Brexit process, we regrettably lost a key pillar of human rights protections through the decision not to retain the Charter of Fundamental Rights. This consultation now comes in the midst of UK Government plans to ‘overhaul’ the Human Rights Act 1998 (HRA), and Bills such as the Nationality and Borders Bill, which roll back on rights protections. These regressive measures on rights protections in law threaten to significantly water down government accountability on human rights and reduce the ability of individuals to have a voice. The HRA has made law and policy across the UK and in Scotland better because it is a vital safeguard against any unintended infringements of an individual’s basic rights and freedoms. The HRA makes Scotland a safer and fairer place to live. Human rights are also a key pillar of devolution, and any steps that undermine the HRA at Westminster would undermine devolution itself.
The European Union is a signatory to the European Convention on Human Rights, as is the UK - it is this Convention that is incorporated directly into our law through the Human Rights Act. We welcome the Committee’s reiteration of their support for human rights and specifically for the ECHR and the Human Rights Act.
• The Istanbul Convention
34 member states of the Council of Europe have ratified the Council of Europe Convention on preventing and combating violence against women and domestic violence (the Istanbul Convention). In addition, 12 member states have signed it – along with the European Union itself. The Convention is the first legally binding international instrument on preventing and combating violence against women and girls at international level. It establishes a comprehensive framework of legal and policy measures for preventing such violence, supporting victims and punishing perpetrators.
The UK Government signed the Convention on 8 June 2012 but has not ratified it. The UK Government has said (https://www.parliament.uk/written-questions-answers-statements/written-question/commons/2016-07-15/42923) that it is committed to ratification but that amendments to domestic law – to take extra-territorial jurisdiction over a range of offences – are necessary before this can be done. There have been repeated calls for this ratification to be prioritised, including in a February 2015 report (http://www.publications.parliament.uk/pa/jt201415/jtselect/jtrights/106/106.pdf) by the Westminster Joint Committee on Human Rights.
The Committee could ask the Scottish Government about discussions it has had with the UK Government on what they are doing to urgently progress ratification of this important Convention. We will quickly fall behind other countries in the EU on rights and standards if we do not do so.