Amendments to the Scotland Act are necessary to ensure the Scottish Parliament can fully incorporate human rights in devolved areas.

A new report published by the Human Rights Consortium Scotland (HRCS) has set out the range of options available to maximise the scope of the upcoming Human Rights Bill. The paper, by Professor Aileen McHarg, Professor in Public Law and Human Rights at Durham University, highlights the significant negative implications that the Supreme Court decision on the United Nations Convention on Rights of the Child (UNCRC) Bill has for the incorporation of human rights in devolved areas.

In October 2021, the Supreme Court ruled that parts of the UNCRC Bill were outside the Scottish Parliament’s powers, and that the duties under the Bill could not be applied to Acts of the UK Parliament relating to devolved issues. This required the Scottish Government to amend the Bill and bring it back to Parliament for reconsideration, with the amended Bill passing unanimously in December 2023.

A significant amount of relevant legislation, notably the Children (Scotland) Act 1995, pre-dates devolution and therefore fell out of the scope of the amended UNCRC Bill (now Act). In the paper, Professor McHarg describes the Supreme Court’s decision as “incoherent” and a “wholly unexpected” limitation on the Scottish Parliament’s powers, and the final form of the UNCRC Act as “narrower”, “much more complicated” and “essentially arbitrary” in scope.

The upcoming Human Rights Bill is similarly constrained by this decision, with acts including the Housing (Scotland) Act 1987 and National Health (Scotland) Act 1978 leaving key human rights areas outwith the scope of the Bill. Professor McHarg’s recommended solution is for the UK Government to amend the Scotland Act to reverse the effect of the Supreme Court decision, either by deleting the relevant section entirely, or adding a new section that clarifies the powers of the Scottish Parliament.

The paper also sets out alternative solutions to widen the scope of the Human Rights Bill, but considers many of these to be risky, such as extending procedural duties, or time consuming, for example consolidating existing UK Parliament originated legislation into new Scottish Parliament legislation.

The ALLIANCE strongly supports a maximalist approach to human rights incorporation in Scotland, and are particularly concerned at the potential limitations on incorporating the UN Convention on the Rights of Disabled People (UNCRPD). We urge both the UK and Scottish Governments to carefully consider Professor McHarg’s paper, and all parties to commit to ensuring that the Human Rights Bill has the widest possible scope to protect and uphold everyone’s rights in law.

You can read the full report on the HRCS website here.

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