Joint Committee On Human Rights Sixth Report


  Scotland's experience in implementing human rights legislation, important in its own right, also offers a useful counterpoint to the manner in which matters have been handled in England and Wales. Most significantly, the Scottish Executive has already determined to establish a Scottish Human Rights Commission.

9.1 A Scottish Human Rights Commission

  The decision to establish a Scottish Human Rights Commission enjoys all party support in Scotland. During public consultation in early 2001, 70 submissions were received with three-quarters favouring some form of Human Rights Commission. There was broad agreement that such a body should be involved in the promotion of human rights and the provision of guidance as well as conducting pre-legislative scrutiny (reporting to the Scottish Parliament). There were divided views over whether such a Commission should be able to undertake investigations into allegations of human rights abuses (either situations or individual cases) and to be able to take action if such abuses were identified. 29

  The Scottish Executive was uneasy about the small number of public authorities who had responded during the consultation exercise given the very substantial impact that a human rights commission might have on the way in which they conducted their business. A separate exercise, targeted at public bodies, was commissioned by the central research unit of the Executive to obtain their views. Responses bore out the need for advice and guidance to be made available to public authorities in Scotland. 30

  The Scottish Executive subsequently decided that the Scottish Human Rights Commission should be an independent statutory body that will be involved with:

    —  "Promotion, education and awareness raising;

    —  Guidance to public authorities;

    —  Providing a source of advice, as required, to the Scottish Parliament on legislation after introduction;

    —  General monitoring and reporting in relation to public policy; and

    —  Investigation and reporting on generic or sectoral human rights issues in relation to public policy." 31

  Missing from its proposed remit is any power to handle individual cases or to bring such cases before the courts. This is a function of the Northern Ireland Human Rights Commission where it has been exercised in a small number of contentious cases. However, this is a path that the Scottish Executive clearly does not wish to tread which has provoked some criticism from the SNP that "the executive's version of the Human Rights Commission has had its teeth drawn before it has had a chance to roar".32 The Commission will, however, have the ability to investigate and report on "human rights situations". Details of the composition of the Commission will be the subject of further public consultation in early 2003. This exercise will seek views on the commission's culture building and investigatory roles, accessibility, accountability to parliament or to ministers, membership and funding.

9.2 Scottish public authorities and human rights

  The Scottish Human Rights Commission will be unusual among such bodies in being given a specific role to advise public authorities. When contacted for this report, in November 2002, the Justice Department of the Scottish Executive's assessment of the position in public authorities and the need to act disclosed a very similar situation to that found in England and Wales. Larger public authorities in Scotland had made the most thorough preparations and conducted audits etc33 In smaller authorities, the picture was more variable and human rights were much less likely to have taken root. In all authorities, the commitment towards human rights had faded over time other than in the legal teams. The Scottish Human Rights Centre expressed similar views when approached in connection with this report. The Centre had provided training for around a third of Scottish local authorities (mainly for legal and social services units) but did not consider human rights to have been mainstreamed throughout any of these authorities. It was commonplace for local authority staff to consider that human rights had no relevance for their duties. They were not being confronted with human rights issues in their work.

  Scottish public authorities are not in a worse state than their English and Welsh counterparts and, therefore, in more need of the services of a human rights commission. Neither are they starved of support on human rights matters. The preparation processes in Scotland and in England and Wales have followed very similar patterns albeit with different organisations involved. If there is a difference it is that there is more life now in the Scottish networks because of the stimulation arising from the debate over a Scottish Human Rights Commission. Scottish public authorities have had to consider their position in relation to such a commission and this has, at the very least, prompted thought if not action on human rights matters. The Justice Department is also attempting to revive old structures and networks and to build new ones to speed the process of establishing a human rights commission. The Convention of Scottish Local Authorities (COSLA) (the equivalent of the LGA in Scotland) established a human rights forum at the time of the introduction of the human rights legislation in Scotland. The Justice Department is now seeking to revive this forum in order to address:

    —  the setting up of the Scottish Human Rights Commission;

    —  cross cutting human rights issues; and

    —  sharing best practice.

  The Society of Local Authority Lawyers and Administrators (SOLAR) formed a data protection and human rights group pre-dating the equivalent network in England and Wales (data protection went to a separate group in 1999). This group continues to meet quarterly under a rotating chairmanship. At its peak, the group had some 20 members. Initially, it shared information on preparations, audit procedures and potential problem issues. The group meets now to review cases and issues (including those arising south of the border) and to share practice. The group maintained contact with its counterpart in England and Wales while the latter functioned.

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