Conference: disability rights in Scotland
Tuesday 6 March 2018, 10.15am to 3.30pm, COSLA Conference Centre, Edinburgh
It has been six months since the United Nations (UN) Disability Committee published its report about disability rights in the UK. In the report the UN Committee set out its main concerns about disability rights in the UK and lists over 80 recommendations for action by our governments.
We are holding a conference to talk about the UN Committee’s concerns and recommendations for action.
By registering you can take part in:
- the ‘UN Disability Rights Question-Time’, where guests from the Scottish Government, disabled people’s organisations and national human rights organisations will answer questions from the audience
- workshops about the action required over the next four years before the UN Committee’s next review and how we can find out if change is being made.
Please email the Scotland Equality Act team or telephone 0141 228 5910 to book a space.
Discrimination Law in 2018 Conference: the authoritative review of the most dynamic area of employment law
29 January 2018
This conference was presented by the Equality and Human Rights Commission Scotland in association with Michael Rubenstein Conferences Ltd. It aimed to review developments in discrimination law, a continually changing part of employment law.
Jamie Hepburn MSP, Minister for Employability and Training, spoke about the Scottish Government’s equality agenda.
Other speakers included:
- Her Honour Judge Jennifer Eady QC, Senior Judge, Employment Appeal Tribunal
- Sean Jones QC, 11 KBW Chambers
- Karon Monaghan QC, Matrix Chambers
- Rachel Crasnow QC, Cloisters Chambers
- Robin Allen QC, Cloisters Chambers
- Rebecca Tuck, Old Square Chambers
Discrimination in education event
24 November 2017
We ran a free event aimed at advisers, equality officers, solicitors and those with an interest in education.
The event examined what discrimination is and how it can arise in an education context. It also provided information about the Commission's discrimination in education project.
Equality and human rights law after Brexit
13 March 2017
This event discussed what Brexit might mean for equality and human rights in Scotland and how we can protect equalities and fundamental rights following Brexit.
The speakers' presentations were filmed and can be viewed below – subtitles are available for these films by selecting the subtitle/cc option.
Training material from previous events
We have held training events on discrimination and equality rights across Scotland. Read some of our previous training material.
Independent review of our legal training programme and Equality Law Bulletin
An independent evaluation of the Commission in Scotland legal team's training events and e-bulletin has concluded that continuing priority should be given to both.
A Community InfoSource (CIS) research team was commissioned to review these areas of our work, focusing on the views of training participants and e-bulletin readers. The report found the Commission's seminar programme had been largely successful in meeting key objectives. The recommendations made have been considered and will be taken into account in further work done under the programme. Read the full report.
Juliette Casey and Clare Collier, Equality and Human Rights Commission Brexit event, 13 March 2017
Good morning everyone it is my very great privilege to welcome you all to this equality and human rights commission event designed to examine the implications for equality and human rights in Scotland after Brexit as Lindsay has mentioned my name is Juliette Casey and I’m a member of the faculty of advocates here in Edinburgh my task this morning is twofold, first of all to introduce the speakers and second to say a few words in very general terms about the implications of Brexit.
First the Speakers, Claire Collier is a Senior Managing Lawyer at the equality and human rights commission and she will discuss how we can protect, maintain and enhance the current level of protection of equality and human rights in the UK and so Clare will focus on reserved matters. Doctor Christopher McCorkindale is a lecturer in public law at the University of Strathclyde and he will discuss the impact of Brexit with a particular focus on Scotland and opportunities for constitutional reform.
What of Brexit itself, the Prime Minister has announced that she plans to trigger Article 50 by the end of this month at the latest, if the ensuing negotiations go according to plan then the UK will leave the EU we are told by the end of March 2019. Politicians tell us that negotiations will involve setting out to change Britain’s relationship with the EU or sever it entirely and within this context for Scotland parallel discussions as to whether Scotland are to stay within the UK or not. Whatever Britain’s and Scotland’s ultimate relationship with the EU will be, it is clear that we are witnessing a shifting of the tectonic plates and arguably on both sides of the Atlantic. While these developments present obstacles they present opportunities also. We can take this time to reflect and consider what values we want to put at the epicentre of our lives and how best to give effect to those values, so without any further ado I will now invite Clare to begin our discussion by first of all addressing the implications of Brexit for the UK.
Hello everyone, as Juliette said my name is Claire Collier, I would like to start by saying it is a very great pleasure to be here and to thank my colleagues from the EHRC Scotland office for inviting me, it’s lovely to see so many unfamiliar faces because in London of course this you know a gaggle of people who come to events like this who I’m quite familiar with and of course I know none of you at all so I hope you will all put up with me, and be a little bit interested in some of the things I’ve got to say at least. The timing for this event couldn’t be better in the sense that it is absolutely all happening at the moment, it is very likely that the bill to trigger article 50 will be approved in the Westminster parliament today which means that although as Juliette said the government’s commitment to trigger Article 50 by the end of the month it may in fact be as early as tomorrow. Also today the first minister in Scotland is making an important speech which of course we do not know what she is going to say just yet but obviously very important context for everything that is going to come out of Brexit for equality and human rights in the future of Britain and the future of Scotland so it is all happening as we speak. The things I am going to talk about are obviously not what we don’t know about what’s going to happen either in Westminster or here in Scotland today but things to do with what the role of the commission is going to be during the negotiation process for Brexit, what the commissions role is, if you like, in trying to ensure that human rights and equality are protected both during the negotiations and following on from Britain’s eventual exit from the EU. I will talk about what we think that looks like in terms of vision and what we think the government’s vision should be for human rights and equality following Brexit and our recommendations in that regard, what our strategy is particularly around influencing with government departments and with ministers and then some more substantive things around the loss of the charter in particular mitigating the impact of the rights that will be lost and similarly around losing the jurisdiction of the CJU, I’m going to go through all this in a bit more detail obviously as we go along I’m just trying to signpost a little bit some of the stuff that I’m going to talk about as we go along. I’ll talk for around 40 minutes and 45 minutes at the most and then there will be plenty of time for questions, comments and discussion after that before we then break. So I hope that’s OK for everybody.
So starting then with the Commissions role itself. Lindsay already told you what our statutory kind of remit is, what that means is that we have specific legal responsibilities under the 2006 Equality Act both as a national equality body and as a national human rights institution. So those are supra national types of body, so the national equality body as in EU kind of designation and applies to bodies that protect equality law across Europe, national human rights institution is a UN accreditation that means that we have an obligation to promote and protect human rights in the UK, well in Great Britain actually, sorry, so our role is to advise Government and Parliament on the equality and human rights implications of existing laws and of proposed laws and on the adequacy and efficacy of both the human rights act and the 2010 equality act. So obviously this role is really important in the wake of the constitutional legislative policy changes which will follow from Brexit. One of the things that we will be doing is carefully scrutinising and advising government and parliament on all of the proposals that come up over the next 2 years which might have implications for the protection or advancement of equality and human rights in the UK and obviously we will be seeking as many opportunities as possible both to protect existing rights or potentially to expand rights both in the UK and its constituent nations.
As you are probably all aware Brexit is not going to have any direct impact on domestic equality law the main difference is that in theory legislation could be repealed once the EU requirements to maintain it is gone. Our position is very clear that the state of the law as it stands should be an absolute floor if you like, for where we go from here, so all of the legal protections that we have at the moment which advance equality and human rights should not be diminished. Much of our domestic equality law predates the equivalent EU law which our own legislation has helped to shape. We believe that the current equality protections are accepted throughout Britain as a valued part of British culture and we also believe that they are not immediately at risk. The same cannot be said for all EU derived fundamental rights particularly those that arise under the Charter of fundamental rights of the EU and some of the EU oversight mechanisms over laws to protect rights in this country will disappear so just to set out my stall if you like from the start I’m going to just run through what our key recommendations are going to be during this process over the next 2 years of negotiation as we head towards Brexit and then I’ll come back to each of these as I go along in my talk today.
So the first of our recommendations is that we need a free standing, sorry they may not be in the same order on the slide so apologies if that’s the case. The first and the most important I think in the immediate future is that we need a free standing principle of equal treatment or an equality guarantee that is not dependent on the engagement of another right.
The second recommendation is that the UK government should implement those parts of the equality act that are not yet in force and indeed, though I think this is unlikely, those parts of the equality act that were previously enforced and have now been repealed. We believe that the UK should ratify protocol 12 of the ECHR and I’ll come back to what this is for those of you that are less familiar with it in a minute we believe that the significance and importance of the international human rights treaties will increase so those commitments which arise under the covenants and conventions that we’ve signed up to from the UN are going to increase in importance and we think that the government should consider enhancing the status in domestic law of much of the law that arises in those treaties. We also think that they should take the implementation of concluding observations by the treaty bodies very seriously and produce timely and a resourced action plans to do that.
The next recommendation is that legislative and policy changes that occur in the wake of Brexit and indeed in the run up to Brexit must be subject to equality and human rights impact assessments that is to ensure that there is no regression from the state of play and I’ll come onto that but I have been encouraged by indications from my colleagues in Westminster that they do plan to do that so that’s a promising start, and finally we think the UK should make an explicit commitment to remaining the best in the world in relation to the protection of equality and human rights and in order to do that it needs to make a commitment to analysing the future rights and enhancing law that emanate from the EU or from elsewhere with a view to considering similar measures are appropriate for implementation in the UK so as to ensure that we keep step with the progression that happens elsewhere in the world.
So our strategy how we are going to try and get those recommendations accepted by government and how we are going to go about that. Our Brexit strategy has 3 main limbs the first is to work to heal the divisions which we saw in the run up to and after the referendum you will all have seen the stories of the increase in hate crime and we want to do quite a lot of work understanding how to try not only how to give people information in how to respond to hate crime and things like that but also to understand the types of interventions which can work to influence peoples attitudes and values so that we can actually help contribute to bringing rates of hate crime down. The second limb of our strategy is to work to promote the involvement in politics of those who generally feel excluded from the political process and from political standards in public life it was very clear during the EU exit referendum campaign and from its outcome that there are large swathes of our society that do feel excluded from the political process and who don’t feel heard. So that’s the second limb of our strategy to increase the involvement in politics and the third limb is to work to safeguard the laws and structures that protect our equality and human rights it is that limb if you like that I think I have been asked to come here today to talk to you about so most of what I am going to focus upon is very much in that space and you will realise of course the recommendations that I’ve just set out also relate to that third limb if you like in our Brexit strategy.
So our immediate focus in relation to safeguarding equality and human rights law is on 2 issues the first to maintain current levels of protection and rights and the second is to try and call for a positive vision of what equality and human rights protections should be in the future in the context of a UK outside of the EU.
The good news is that the governments has already made a commitment that all the protections equality legislation will continue to apply once the UK has left the EU, they said there will be no going backwards on this issue. So I’ve put a couple of quotes up on the slide there that demonstrate that this is still this governments intention. The intention as you can see from the quotes on the slide applies to equality law and it applies to workers rights, so employment law broadly speaking. There has been no such equivalent commitment to maintaining the levels of protection of rights outside of the equality and employment spheres and in this moment where obviously we are in a period of significant constitutional change throughout Britain and, of course, perhaps even more so in Scotland it’s not in our view enough. We think it is vital that the government sets out a better vision for rights across the board it is not clear at all from anything that the government has said so far that workers rights have been singled out they have a whole section in the white paper but none of the other rights that we all believe in and think should be protected are covered in the white paper in any detail at all. So we need to strengthen our homegrown legal protections for example by implementing the provisions of the equality act as I have already mentioned that would include for example the socio-economic duty in section 1 of the Equality Act 2010 and I’ll come back to that later on. The Equality Act 2010 was passed with cross party support so we believe that there is real potential to enable that that vehicle to be used to drive some consensus across different constituent groups in parliament and beyond. In particular, for example, the provisions to increase diversity in parliament could help to reengage those groups who feel excluded from decision making in our country. The commission has also advised the government to consider to introducing constitutional rights for equality against which any new laws or actions by the state can be tested. The Westminster women and equality committee has suggested one model for achieving this aim through time by bringing forward and amendment to the equality act 2010 in line with the human rights act our own draft clause that we may be able to circulate I think after this event would work on a similar basis to, so that the idea is that you would put a clause into the human rights act that would expand article 14 of the ECHR to these situations where you are not dependent on another right. We have also advised the government to reaffirm its commitment to international human rights standards by stating its commitment to remaining a party to the European convention on human rights. It should also consider ratifying protocol 12 as I’ve mentioned that will enhance the UK’s international accountability in respect to the right to non discrimination in the UK law, I’ll just mention also in relation to remaining a party to the European convention on human rights there seems to still be a considerable amount of debate in the Conservative party about whether or not they actually propose to withdraw from the convention in the long run there was a parliamentary question last week when David Davis stated unequivocally that it was not part of their plan to withdraw from the European convention whilst at the same time you’ve got people in the Conservative party working on the 2020 manifesto who are suggesting that there will certainly be a manifesto commitment to do something about this long running British bill of rights issue, the question is whether that proposal will include leaving the European convention or whether its rather more sort of tinkering at the edges type model which is what we were expecting to come out last year just before it most recently got shelved. So there is a whole lot of questions around that but we are talking both to this government and separately to the Conservative party itself about the importance of remaining in the European convention on human rights and in council of Europe that is clearly an important part of this strategy that rights are protected post Brexit, and finally we advised the government to demonstrate it takes its global commitment seriously by embedding the obligations its signed up to in the UN human rights treaties in the UK law and setting out how it will implement the UPR’s recommendations as well as the concluding recommendations of UN treaty bodies. This is particularly relevant obviously because UN Human Rights Council is reviewing the UK’s human rights record if you like at the universal periodic review in May so the UK government will be questioned by all the other members of the other UN human rights council about its focus and commitment, and successes and failures in upholding human rights in the UK and its very obvious I think already that Brexit is going to be a key part of that debate coming up.
So the immediate focus needs to be on what we can achieve in the great repeal bill for those of you that are interested the House of Lords select committee produced a report on the great repeal bill just last week which is worth checking out online if you haven’t seen it in and you’re interested in the use of delegated powers to amend legislation and so on. We have been encouraged by fairly positive discussions both with the government equalities office and with DECSEU we have been told by officials that the great repeal bill will not give ministers powers to amend or repeal equality and human rights laws so it appears that both the equality acts of 2006 and 2010 will be safe in that sense but its not clear exactly what the potential extent of Henry VIII powers in the great repeal bill will be so we do think that the government needs to more explicitly confirm its commitment to protecting its current legal protections and it would be helpful to do that rather than simply drafting the great repeal bill so that it makes it clear that Henry VIII clauses can only be used in certain circumstances but make it explicit that they can’t also be used for certain purposes so that certain types of laws if you like are excluded from that kind of law making process.
All of the things that I’ve just said all of these recommendations that we have made to government we have also made publicly in evidence to the joint committee on human rights and to the women in equality committee also to the Welsh Assembly equality committee and I believe the Scottish government advisory group round tables. So I do think its evident if you look at the GCHR report and the WEC report that some of these things that we have been saying have been listened to of course we are not the only people saying some of these things and there are certainly parliamentarians who are aware of what some of these issues are. So the next phase of this work will be to work with NGO’s other parts of civil society with the other UK NHRI’s and the other NEB to ensure a joined up approach to influencing both now and as Brexit negotiations progress I think it would be really useful when we come to the Q&A after I finish speaking to hear from you about what you have planned we are aware that there are a lot of like-minded organisations who could rally behind these points that we are making particularly in respect of the use of delegated powers and what the great repeal bill looks like and so on and it would be interesting to hear what other peoples policy strategies are, certainly in England we are coordinating to a certain extent some parts of civil societies engagement and helping people to meet and discuss and so on but we are obviously keen not to duplicate or undermine the peoples efforts so its important to know what kind of things are in the pipeline. So, other opportunities coming up I’ve talked about the great repeal bill and the importance what that says in relation to the use of Henry VIII powers. Brexit will loom large in the UN human rights councils review in May there some opportunities specifically around that there’s evidence session on UPR that GCHR are holding in April which will I think potentially include stakeholders from Scotland as well as the minister, NHRI’s some of the UK based NGO’s as well. The examination itself is on 4th May and the UK will respond to the questions put to it on 9th May, so we are talking along with the other UK NHRIs with key embassy’s to act on the international stage who we believe may ask relevant questions or relevant recommendations in relation to the protection of equality and human rights in the context of Brexit. Obviously they can choose to make their recommendation about absolutely anything so there is a whole gamete of things that may come up during UPR and some of those are equally important there are lots of human rights issues that are very pressing in the UK but we do think it is important there is at least a core base of sensible questions and recommendations around protecting human rights and equality in the context of Brexit to ensure that it remains high on the governments agenda over the next two years. Brexit also featured in the concluding observations of the UN’s race treaty body in particular around the hate crime spike and we are actively following up on these recommendations, I would also like to feature the concluding observations from the CRPD committee and there are issues there not only around example disability and welfare and so on which are high issues on the agenda but specifically EU issues perhaps around the EU accessibility act or the impact of the future immigration deals on the availability of personal assistance to support disabled people living independently, which is anecdotally one of the most serious issues being talked about disabled people in the UK in the context of Brexit. The pre-sessional working group for CRPD is in March and the examination is later this summer so again opportunities there to make sure that Brexit remains high on the agenda. The all party parliamentary working group on equality is planning to hold a session in July on risks and opportunities in the Queens speech and since the Queens speech will include the great repeal bill, so we think, Brexit is likely to be key focus also of that. So I think that just about brings me to the end of the bit about strategy and influencing and I want to move on to talk about more specifically around some of our key substantive concerns about EU based rights law. I put up on the slide there a kind of list of the areas that EU law affects most strongly. I’m not going to try and cover every potential impact of Brexit within each of these areas, and there are in fact quite a lot of papers that are already been published academic papers, NGO papers and so on that covers some of those areas in a bit more detail and indeed some things published by us as well but I just want to pull out from there a few specific sort of highlights some that I think are particularly important or problematic areas that we are thinking about and of course mainly focusing on potential solutions I hope and perhaps some opportunities.
So in relation to equality law first of all as you all know the bulk of EU derived discrimination law is fully incorporated into domestic law that’s that’s not at risk, even in respect of those laws which are not currently incorporated into domestic law but which have direct effect in the UK, i.e. the whole of the EU law AKI with the body of UK law, the UK government has indicated that existing protections will be maintained post Brexit in the great repeal bill and that they will be reviewed on a case by case basis by parliament I think that commitment goes far enough to suggest that it won’t be possible for them to appeal primary certain legislation by the use of secondary legislation. Of course the primary difference though post Brexit is where at present certain protections that are contained in our domestic law are required by EU law after EU exit the guarantee will be removed and of course we won’t have this government forever and a future government might be less willing to provide the commitment that this government has made so far so they are potentially vulnerable to repeal in future. Human rights principles form a part of the treaty on the EU article 2 of the TU provides that respect for human rights is one of the rights on which the EU was founded, Article 6 of the TU recognises 3 main sources of fundamental rights, the Charter as I have already mentioned the European convention of protection of human rights as you will all know and the constitutional traditions common to member states. The constitutional traditions common to member states is actually quite a problematic category because as you can imagine the constitutional traditions common to member states, well they vary a lot across member states and trying to hold that everything in the charter is common to all member states is a slightly difficult position to hold but nevertheless those sources if you like are combined under now the charter because the charter includes within it things that are drawn from the constitutional traditions common to member states and the charter has the same value as treaties and is part of primary EU law. The TU of course also makes provisions specifically in respect of those in equality providing that EU law shall combat social exclusion and discrimination, promote equality between women and men and protect the rights the right of the child, so there is a lot of law even at the highest level in the EU that pushes us in a particular direction. There are also a lot of specific areas in EU law were domestic protection has really arisen in respect of a push from the EU in relation to fundamental rights. So the right to respect for privacy life is of course a right protected by international conventions including the ECHR but it is particularly strongly protected in the charter and under the EU data protection directive. The data protection act 1998 and its Scottish equivalent domestic legislations, which give effect to the EU law in this area so its another area where there is a risk if you like that once the underpinning EU law is gone everything is then up for grabs in terms of what a potential future government might do in terms of amending privacy rights. Trafficking is another area which has been, where the law has been driven a lot by the changing situation in the EU although trafficking is prohibited by the European convention on human rights and other international instruments. The EU’s directive is the one that establishes particular minimum rules concerning for example the definitions of criminal offences, sanctions and so on and also requires assistance support and protection to be given to make some sort of trafficking, so that’s just 2 areas, trafficking and privacy rights that I think are particularly important for us to keep an eye on going forward, in addition of course to equality.
So just thinking about the charter for a minute, I don’t know how many of you are familiar with the EU charter on fundamental rights, perhaps I can have a quick show of hands, all those who know about the EU charter, ok very few, that’s more or less what I expected but I didn’t want to tell you things that you already know. So the charter is the EU’s equivalent if you like to the European convention but it goes much broader than the EU’s convention on human rights it has rights, freedoms and principles within it including all of those that are recognised by EU law. And it is divided into 6 sections, 1 on dignity, freedom, 1 on equality, 1 on solidarity which is the most controversial one in the UK context, 1 about citizens rights and one about justice. At the moment the charter is legally binding in the UK due to the primacy of the EU law it has direct effect there are a lot specific arguments about exactly what that means, particularly in relation to those rights which are not rights but which are principles which is a bit beyond the scope of this talk but the point that I want you to grasp is at the moment there is a body of rights law that is directly applicable across the UK and which will be lost because it is absolutely certain that whatever happens in respect of what this government does in terms of agreeing a deal with the EU it is not going to include signing up to being bound by the charter in terms of just disability and individual rights that is one of the motivations for the Brexiteers wanting to leave the EU and so it is one of things that will certainly go I think, so it is inevitable that there will be rights that will be lost from the domestic legal order post Brexit due to the loss of the charter, and as I‘ve said that is because the charter is much more broader than the European convention itself. So in relation specifically equality law the charter includes article 21 the charter of fundamental rights includes a provision of the discrimination on any ground, you can see how I am going to link back in here for the need for a constitutional rights for a policy in the UK because article 21 of the charter specifically prohibits discrimination on any ground and the list is sex, race, colour, ethnic or social origin, genetic features, language, religion or belief political or any other opinion not in the ECHR, membership of an association, property, birth, disability, age, sexual orientation, nationality and it’s a such as list so its not exhaustive. So it protects against discrimination on ground that are not protected characteristics under the equality act but only within cases arising within the scope of the EU law but that is not insignificant in terms of the areas where the EU has competence, so it gives broader protection than the equality act in the sense that it applies across a broader range of grounds and it gives broader protection than 14 of the ECHR in the sense that it’s a free standing right, so its not dependent on another right being engaged you’ll all be aware I’m sure that the way article 14 of the ECHR works is that it piggy backs on another right, so if you’re in the bandit or scope of another right, so in the right to a private life under article 8 of the ECHR for example you can then argue that a discrimination point on a limitless list of grounds under article 14. Article 21 of the charter doesn’t have that constraint you don’t need to be within the ambulant of another right so it is a free standing right. The ECHR does have an equivalent right to article 21 of the charter, the problem is that the UK hasn’t signed up to it, its protocol 12 of the European convention on human rights and its basically the same as article 14 except that it doesn’t require you piggy backing on another right. So ratification of protocol 12 is one of the changes we are going to be advocating to mitigate the loss of the charter fundamental right because that will replace if you like article 21 in fact it will go slightly further than replacing article 21 because it will apply across all spheres of life not just within EU competence, but obviously that is a good thing. So the protection provided by the charter in domestic law just to make sure that I have made this clear, is really powerful at the moment because legislation that conflicts with the fundamental right protected by the charter can be disapplied by the domestic law so that’s the same as the position in relation to all other EU law, EU law has primacy so where EU law and domestic law conflict, EU law wins, so because the charter is primary law you can dis-apply domestic legislation that conflicts with the fundamental right protected by the charter, and claiming for damages on EU rights is also a bit easier than claiming rights from the HRA. So it is a really important tool that has been sadly underused while we have had the opportunity to use it. Though increasingly over the last 2 to 5 years we have seen a lot more use of the charter across all UK courts. It will be going so we need to do what we can now to identify exactly what the benefits of having the charter are so that we can try and transpose some of those benefits into some kind of domestic equivalent as we go along. So that’s the charter.
Moving on to equality rights I expect that you are all familiar with the race directive the re class directive the framework directive, the EU equality directives which collectively provide protection against discrimination at work and you will know the limited list of grounds, racial or ethnic origin, sex, religion, or belief, age, disability or sexual orientation. In addition we have the race directive and the gender, goods and services directive which provide protection against discrimination on the grounds of race, sex and goods and services and the race directive is the widest of them all because that also extends to social protection to healthcare and social advantages in education. So all of those as you will be aware are given effect in domestic law in the UK under the equality Act 2010, the equality act obviously goes further because nearly everything it does in respect of all the protected groups. But beyond the equality directives there are a number of areas of EU law which are not specifically about prohibiting discrimination but provide rights for particular groups of people who share protective characteristic so such as disability, race or sex for example. Or that provide protections which are relied on disproportionately by particular groups so the EU for eg has been at the forefront of disability transport rights, accessible transport by air, bus, rail or ship has all vastly improved due to EU regulations and in fact accessibility generally for disabled people has greatly improved and is strong in EU law, preferential treatment for blue badge parking customers, braille labelling on medicines, particular provisions that have been helpful for particular groups of disabled people. There is also the pregnant workers directive which provides important health and safety and employment laws which provides protection for pregnant women and the working time directive all of which are particularly helpful for some types of groups, a typical workers generally are more likely to be women are more likely to be people from ethnic minority groups and particularly benefit from part time workers directive, fixed term directive, temporary workers directive and so on. So obviously one of our tasks collectively is going to be to try and ensure that those rights are not removed or diluted by a future government, as I’ve said, in terms of workers rights, this government has said they are not at risk but clearly some of these areas if they are perceived by business to be burdensome by business in the future and once the initial flurry of Brexit has started to die down and when the governments main policy proposals have gone and underpinning EU law has gone then obviously some of these things are potentially at risk in the future.
In terms of opportunities there are a few, we shouldn’t ignore them there are one or two areas where the EU has decided that particular things that might protect individuals or advanced rights are not allowed under EU law and obviously the removal of the constraints of EU law potentially then provides an opportunity for us to go beyond what would be permitted in EU terms, there are a couple of examples of that one is the rules that regulate public procurement mean that at present you cant provide one kind of person over another and it might be that in the absence of that EU constraint it might be possible to devise for example acceptable procurement systems that allow for particular kinds of contract to be provided on bases that promote positive action will generally is quite restricted in terms of what is permitted under EU law what you have got under section 151 and 159 the equality act 2010 is as far as you can go in EU law but the CJU has put the limits on that quite tightly on what is permissible in terms of positive action measures, so again that scenario where we do think in the absence of the EU constraints there is a possibility that there could be potential development in that area and it is certainly something that we should advocate for in circumstances where positive action measures would make a real difference in particular industries or particular areas of life.
So equality then is a fundamental human right, I hope that we all agree on that we are obliged under international human rights law but the EU law underpinning the equality act will disappear as we have talked about and it is the commissions view that further entrenchment to the right to treatment is essential this will help embed the principal of equality across all law making and policy making across other provisions so not talking about equality specifically, employment or whatever, just generally considering equality as one of the fundamental principals that needs to be taken into account and also prevent the development of law that might have a discriminatory impact there is no right to equality recognised at common law yet in the UK we are working on that as well but I think that will probably be another, well it depends what happens in the context of this potential legislative change and what happens to the bill of rights and what happens after Brexit and all the rest of it, but in the absence of all other factors I think it would have still taken another 10 years for the Supreme court to get a case in which it was willing to say yes we now conclusively and definitively agree that there is now a constitutional right to equality at common law. So I don’t think we can rely on that. The Equality Act only works within the spheres that it works in and it only deals with a limited range of grounds and article 14 as I’ve said requires another right. So we believe that the answer to that problem is to embed equality into the domestic legal framework is a twofold thing, we need to both ratify protocol 12 and create an act of freestanding constitutional right to equality, the reason why we need to have both is because protocol 12 would give individuals a remedy in Strasbourg in the same way that any other breach of the human rights does and the problem with relying solely on article 12 is that it is actually not as good as the proposals in terms of the Breck protection as the proposals that we have suggested and in fact the women in the equalities division are going with as well in terms of a free standing principal of equal treatment. The other advantage of course is that it would maintain the minimum level of protection across the UK but would of course still be open to Scottish parliament to go even further but it would in relation to devolved legislative obviously in that it would create a kind of floor that would then apply equally across the UK. So in addition to those 2 things we’ve called for certain parts of the UN human rights framework to be incorporated into domestic law. I did mention this at the beginning it is incredibly tricky, you can’t just say all UN human rights treaties should be incorporated into domestic law, there are bits of them that to do that would not make any sense legally so its quite a long complicated process to work out what we can do with each of these human rights, each bit of each treaty does a due regard model for e.g. make sense in relation to a particular bit of law or is it something that can be incorporated directly just incorporate a clause in a bill that basically says what it says in a particular bit of one of the international treaties, this is certainly something that we are working on and some particular proposals already and I hope that over the next 2 years we will be working out more and more proposals that kind of do this thing to further incorporate the UN international framework into domestic law. Of course the bill of rights if and when it happens may be an opportunity for us to start to talk about that. I think in the context of the loss of the charter and the fact that the bill of rights is and always is going to be a particularly messy topic that we shouldn’t necessarily wait for that and where relevant bills come up we will be putting forward amendments to perhaps do particular individual things. I think there was a bill going through the Westminster parliament last year where we put forward amendments to try and get the conventions of the rights of the child or certain aspects of it incorporated in to domestic law, those amendments didn’t succeed but at least it raised the idea of being able to do that, so that with parliamentarians it increases the profile of that possibility. Of course you are probably aware that the Scottish and Welsh governments have enhanced the convention of the rights of the child already in national law but by introducing a due regard type duty, so a duty on policy makers and legislators to consider whether the convention of the rights of the child is being adhered to, there is no such duty in England as yet. We do think that this has engendered a more systematic consideration of children’s rights and the development of policy and legislation in Scotland and Wales. So obviously its only a stepping stone following incorporation we do believe that that’s a really worthwhile thing to do and that it should happen in England as well. Another specific way in which we can do that or seek to enhance the value of international rights in the domestic context would be to enact section 1 of the equality act 2010 section 1 of the equality act is socio-economic duty a duty on public authorities to have due regard to the desirability of reducing socio-economic disadvantage when taking strategic decisions about how to exercise their functions. This section as you know obviously has never been brought into force we think it could go some way towards promoting compliance with the international covenant on economic, social and cultural rights in domestic law so bringing section 1 in to force would help increase protection for socio-economic rights that are currently protected in the charter and of course it would also be in line with the recommendations from the UN committee on economic, social and cultural rights, I think the committee’s recommendation was simply to bring that provision into force. There are other provisions in the equality act 2010 that have not been brought into force which should be implemented section 9, sub section 5 of equality act is about caste discrimination, again that is a complicated topic which I can talk about in the questions if anyone is interested, there is some case law that says that caste is protected under the race provisions but it is not fully so we again think the specific caste discrimination provision is a worthwhile extension of the equality law. Section 14 on dual discrimination which is of course the provision with the attempts to deal at least partially with intersectionality of disadvantage and discrimination. Both of those have been recommended by the UN committee on the illumination of racial discrimination of SERD committee.
I think those are the key ones in Section 106 on diversity of political representation which I mentioned at the start which is particularly important in relation to the second layer, if you like, of our Brexit strategy the bit about increasing political participation of people who currently feel disenfranchised in the political process in the UK. So before I wrap up, I think I have done remarkably well on my time which I always guess wrongly but this time I seem to have done it right, so I’m heading to end right on time I hope. Before I wrap up I just wanted to say a few words about the court of justice at the EU. The future status of the case law of the CJU in relation to the domestic legal concepts which are derived from EU law is uncertain the government has set out in the white paper the suggestion that current interpretations should prevail for the time being, I’m not sure that that particularly reduces the uncertainty it is slightly better in that up to domestic case law that relies on CJU case law should not be necessarily re-litigated we don’t need to see settled principals going up in the air just because the future jurisdiction of the CJU is going to be ousted. But there are a number of issues that arise obviously when domestic courts now apply laws within the scope of the EU law they have to use the principals of interpretation that arise from EU law so you have to construe EU purposefully so as to give it meaning constant to EU law as far as possible, and of course the international courts have the power to make arrests or to make a referral to the CJU in cases where the meaning is not clear, and domestic legislation can be disapplied if it conflicts with the EU law so the combined impact of those principals on domestic law is very strong I think. There has been, particularly in relation to equality rights the CJU’s interpretation of the equality act directives has extended protection I think quite substantially, I’m including when relying on the charter not just on the directives themselves, so there is a whole range of examples some of which you’re probably familiar with of cases that have expanded the equality anti discrimination protection of UK the test stash hats in relation to insurance premiums; Mrs Coleman's case that led to protection for associated discrimination a whole load of other examples in the field of gender reassignment discrimination, special protection during pregnancy in relation to the comparator of the new forensic man, extending protection against harassment and so on. It’s also the case that the CJU has been in regard to other fundamental rights particularly in the context of date protection, privacy rights state surveillance, the key cases to look at if you’re interested in that area are Shrems, about personal data transfer; google Spain which you will all be familiar with as you all get that little message on your screen that says some search results may have been removed, that’s because of the google Spain case in which the court held that google had to remove certain results, remove links to web pages resulting in a search on someone's name; in the domestic courts the court of appeal has applied the EU charter to override a provision to the DTA which was held to be incompatible with EU law, and so there is a whole range of situations beyond equality law but within the field of our rights where the CJU has been really important, the loss of the principles and enforcement mechanisms which arise from being within that system will have quite a severe impact people won’t be able to seek an interpretation from the CJU that’s the mechanism by which many of these expansions have happened, so that will be an important limit, of course people won’t be able to rely directly on EU rights directly in the domestic courts inevitably future decisions of the CJU won’t be binding and given that history has shown that CJU has tended to go further than domestic courts in protecting rights once that link is broken you can say over the next 10 or 20 years the CJU might continue increasing rights in certain areas in domestic courts, being no longer bound to follow them will go off potentially in a different direction. So we will end up with different levels of rights even without changing the legislative framework we could end up with different levels of rights between the UK and the EU. I’ve mentioned the point about realisation of settled principles. As I say the government seem to be suggesting they don’t think that is what should happen. We will need to see if they produce some guidance which makes that good. But courts won’t continue to apply the EU rules of statutory interpretation so if issues arise in the future about this scope of rights they are very likely I think to be interpreted less restrictively, although of course it could go the other way, interpreted more broadly, sorry more restrictively, less broadly. So we don’t know what the impact of existing case law will be. We do know the Government’s intention is to preserve it all for the time being, and it is not really that clear how they are going to do it. I can’t imagine having to draft the clause myself but the intention in the Green Paper, in the White Paper, is clearly that all of the EU law as key will be transposed – that includes case law and includes things that aren’t actually written down in bits of domestic law anywhere, bits of EU written law, regulations and so on. So it includes decisions from the CJU and potentially other regulatory decisions from the EU. So that will all be in and then it will be up to all of us to ensure that it stays in. That’s pretty much most of what I’ve got to say. I hope I’ve given an overview, a flavour of some of the issues that we think are going to arise during and after Brexit. I’ve given a few suggestions about directions of travel, I think the key point is that the Government has a lot to do, both the Scottish Government and the UK Government have a lot do in negotiating Brexit and they will take the eye off any ball they are allowed to take their eye off. People focusing on different areas, clearly there are lots of important things out there, financial services industry, there are loads of important issues, universities funding, hundreds of things that lots of people will be focusing on and so it’s up to us – we have this, certainly in the Commission, we have this narrow focus on equality and human rights law but we hope a lot of partners from across civil society will try and make sure equality and human rights remain an important focus during the negotiations and afterwards and that we all have a role to play in doing that. Thank you very much.
Dr Christopher McCorkindale, Equality and Human Rights Commission Brexit event, 13 March 2017
I published a piece recently in the Kings Lodge. I was asked in June to publish a piece that should be submitted in September for publication in December about Scotland’s place in the EU and every time I finished a draft of that paper, a major announcement occurred. The UK Government ruled out this option, there was another redraft. The Scottish Government ruled in this option, there was another redraft, and I thought accepting this invitation at least there’s been tranquillity and some certainty I know what I’m going to talk about until 11 o’clock last night when the First Minister called a press conference that is currently ongoing and which seems to be changing the game once again. Now I’m just going to start with some very brief remarks. I don’t have my full handle on what’s happening in the First Minister’s press conference because it is literally happening right now. Typical of Nicola Sturgeon to steal my thunder. Em, but there are a few comments that I think we can make. What we do know is that according to the First Minister her attempts to seek compromise with the UK Government, that’s to say a differentiated relationship with the EU for Scotland as well as perhaps for Northern Ireland and maybe even for Wales, where that at least in Scotland and in Northern Ireland’s case there were votes with the significant majority to remain in the EU, but those attempts to find a differentiated solution have failed. She had said today that the UK Government have not moved an inch and so she has announced that within the next week she will begin the steps necessary to give the Scottish people a choice between a hard Brexit and an independence referendum, so it looks like the second independence referendum has all but been called. Now, I hadn’t really planned to address this directly in the talk, but I will just start with three comments. You will notice that as I go through this all of my comments happened to be have been reduced to three. I’m not sure why that is. Em, I will start with three comments just I guess signpost some issues that might arise as the result of the calling of a second referendum, or it seems almost inevitable calling of a second referendum. The first is the question of legislative competence which I will talk about in a wee bit more details during the talk proper. The Scottish Parliament is a parliament of bounded competence. Unlike Westminster, there are laws which it cannot make or unmake and those laws, those boundaries are policed by the courts. One of the boundaries to competence is the constitution and the Union of Scotland and England is a reserved matter. That is to say the Scottish Parliament cannot legislate in a way that relates to the union between Scotland and England. Now it remains a matter of debate whether or not an independence referendum itself is a matter which relates to the union between Scotland and England and can therefore be stuck down by the courts, and would therefore be overruled by the courts. I think the preponderance of opinion is that if you take into account the object and purposes and the likely effects of an independence referendum that this is not merely an opinion poll but is a means of making a decision, then it is likely that the law would come down on the side of the object and purpose of a referendum being one that relates to the union between Scotland and England and therefore being one that is beyond the powers of the Scottish Parliament. But I just want to flag up for what I think is a significant reason why that seed of doubt remains. There is a seed of doubt that has support in academic opinion, and I can make you aware of that that is. I will perhaps send an email with some notes round following this event. But there is some academic opinion that says that an independence referendum is a means of testing public opinion. It’s a means of indicating to the Scottish Government whether or not to pursue independence, that, for example, if there is a clear “no” vote in the referendum then it will not have the effect of breaking up the union and therefore it will not relate to that and there is perhaps some room to doubt whether or not within competence. Now, the reason why I just flag up this seed of doubt is that although it seems likely going with the First Minister’s statement that what she will seek is a Section 30 Order, a transfer of legislative competence from Westminster to the Scottish Parliament, as was practiced during the 2014 referendum to put the legal question beyond doubt, to make sure that it doesn’t end up in the Supreme Court. There does remain that question what happens if the UK Government says 'no' or what happens if the UK Government attempts to dictate the terms of an independence referendum in a way that seems to be disadvantageous to the Scottish Government or maybe even to the Scottish people by delaying it to well beyond Brexit for example. You can have your referendum, but not until these negotiations are concluded, not until you are on the outside. In that case, the very fact that there is a seed of doubt, there is room for argument as to whether to Scottish Parliament has legislative competence, whether the Scottish Government can introduce this legislation. It becomes significant at the political level, maybe not at the legal level, not at the level that what might happen in a court room, but at a political level, because if you can make the argument that you have the competence to do this then you put the ball in the UK Government’s court that if we introduce this legislation, dare the UK Government to veto the referendum, dare the UK Government to refer the case to the UK Supreme Court and to have the UK Supreme Court tell the Scottish Parliament that it doesn’t have the power to act and therefore to create what is in effect a political win-win, that either the Scottish Government has its referendum as it intends to have, or it has a clear statement from the UK institutions that it does not have such power and can make political capital out of that. So the competence question hasn’t quite been addressed by the fact that a Section 30 Order in the previous referendum and it might be an issue that arises if the UK Government plays hardball with it. The second question is what a differentiated response might require. The First Minster has said that although it seems unlikely, she is open to further negotiation and it seems possible that an independence referendum will be taken back off the table if a differentiated response to Brexit can be found for Scotland, that is to say, for example, that Scotland remains within the single market. Well, that it seems to me would have significant impact on devolution. In order for Scotland to retain a relationship with the European Union, you would need a significant further devolution of powers. We have already had significant devolution of powers, tax raising powers in the Scotland Act 2012 after the review with the Calman Commission. A couple of years later we had a significant review of powers in the Smith Commission and transfer of more powers, and here we are not even a year after the Scotland Act 2016 with cause to further review the division of competence between the Scottish Parliament and the UK Parliament insofar as it might require the devolution of even more powers to allow Scotland to remain in the EU or to have a relationship with the EU. That might include powers to sign international treaties, that might include powers or competencies around immigration to allow for the free movement that might be required for that, it might mean the competence of further competence in relation to employment laws or regulations to ensure that free movement can be utilised to its fullest effects. The point is simply that the issue of more devolution is not off the table just because the Smith Commission and the Calman Commission seems to have settled the question for some time in 2012 and in 2016 and then finally the third point as I say, and a very tentative response to what I think the First Minster is saying right now is that she gave a speech recently, maybe a few weeks ago, in which she was criticised, the First Minster was criticised a bit (a) for suggesting in the draft of the speech that was circulated that Brexit posed a threat to devolution itself and (b) for deciding to skip that passage when she actually delivered that speech and that’s something that journalists picked up on at the time. She was criticised in this old line of grievance mongering for example, that this was an attempt to build a grievance with the UK and therefore to build or to construct a route to independence but I think there is to a certain extent space to see Brexit as a threat, if not to devolution itself, if not to the fact of devolution at least to the assumptions that underpin devolution and again this is a very tentative response to something that I think she might be saying but I would just that we can take a wee bit more seriously than it has been the idea that Brexit poses a threat to the underlying assumptions of devolution which was brought my mind yesterday when Nigel Farage suggested that the talk in Brussels is that the UK might be willing to give away access to British waters in order to put a chip on the table, in order to win concessions in the EU in the Article 50 negotiations but of course the fishing rights currently exercised at the EU level are not matter reserved to Westminster. We have a conferred powers or a retaining model of devolution which is to say that everything is devolved unless it is expressly reserved in the Scotland Act. Fishing along with some other EU competences, environmental law and protection and regulation as well as agriculture, these areas are not specifically reserved in Schedule 5 of the Scotland Act and therefore their starting assumption must be that following a retaining model of devolution they are repatriated to the Scottish Parliament and any negotiations returning to the UK beings with that assumption. The UK seems to be taking a slightly different approach that we never intended for Brexit to exist when we drafted the Scotland Act and so the facts have changed and the law has to change with it but the fundamentally changes the devolution settlement because it assumes a conferred powers model in these areas, i.e. that you will only have devolution over these areas if it is specifically granted. That is a threat to devolution I think because it changes the assumptions under which it works and I suppose the final point on that is that if the Scottish Government was able to persuade the UK that the retaining model of devolution does mean whether they intended it in 1998 or not does mean that these are areas that are devolved to the Scottish Parliament, in order to return them to the UK level that would require a process of negotiation that would mean opening up the Scotland Act, opening up Schedule 5, opening up the list of reserved matters and amending it. That would be something that would engage the Sewel Convention, it would require the consent of the Scottish Parliament and therefore at that point the Scottish Government has some leverage to use the withholding of consent in order to influence the behaviour and approach of the Scottish Government, so those are just some very very very tentative comments that I don’t intend to cover or I hadn’t intended to cover until the First Minster got in the way. What I am going to suggest is I am gonna make four broad bullet points I suppose which will more or less loosely hang together about the way in which human rights in Scotland’s constitutional position interacts. Unlike Claire I’m not strictly speaking an equalities or human rights lawyer so I’m gonna give this more of a constitutional glint I suppose and I’ll defer to some other experts in the room on the technicalities of human rights and equalities law. The first bullet point or the first heading that I want to suggest is that devolution was intended to create a parliament that was qualitatively different from Westminster. Devolution was intended to create a parliament that is qualitatively different from Westminster. This was a thread that ran through the Claim of Right for Scotland, that ran through the Scottish Constitutional Convention, that ran through the consultative steering group that drew up the framework for devolution that ran through the Scotland Act 1998 itself. The Scottish Parliament would be, to replicate or to parrot the founding principles established by the consultative steering group, the Scottish Parliament would be more accountable than the Westminster Parliament, it would be more open and transparent than the Westminster Parliament, it would provide more opportunities for women and minorities and it would share power more widely both between the Executive and the Parliament and between the Parliament and wider civil society. Now, you can decide for yourself whether or not the early years of devolution, the first seventeen or so years of devolution, has seen those aims to be realised and in fact the Presiding Officer has commissioned a parliamentary reform that will gauge the parliament’s performance in relation to those founding principles that will report in June but one of the significant differences that has had an impact is that the Scottish Parliament as I said is a parliament of limited competence. It’s a parliament of bounded competence. Now where Westminster is free to make or unmake any law whatsoever, or at least the orthodox reading of the British constitution is that Westminster is free to make or unmake any law whatsoever, and where acts of parliament are free from, immune from judicial censure, no court can set aside an act of parliament. As I said, in the Scottish context, there are laws which the Scottish Parliament cannot make or unmake and acts of the Scottish Parliament that go beyond those limits can be struck down by the courts. This is an extremely powerful constraint on what the parliament and the government can do. Now, this is not only because the Scotland Act, the Scottish Parliament is itself a creature of statute, a subordinate legislator created by an act of parliament at Westminster, this was also an aspiration. Bernard Crick and David Millar at the time of the Scottish Constitutional Convention, and anticipating the work of the Consultative Steering Group said it would help to make the Scottish Parliament a model of democracy if the laws that it made were subject to judicial review in the courts. If the legislative freedom of the parliament was subject to limits, including limits in relation to human rights, so an act of Scottish Parliament then is not law. The Scotland Act tells us an act of the Scottish Parliament is not law to the extent that it relates to a reserved matter, that’s policy areas that are retained at Westminster, that it’s incompatible with a convention right or that it’s incompatible with EU law and the Scotland Act replicates those limits for the Scottish Government as well as for the Scottish Parliament. Now, the significance of this for the model of rights protection in the Scotland Act model is two-fold. First of all, devolution has created powers for the judiciary. The first significance is that devolution has created powers for the judiciary that have hitherto been unknown to the British constitution to strike down primary legislation enacted by a democratically elected legislator. Devolution has created new powers for the judiciary to strike down legislation enacted by a democratically elected legislator. Whether those are right, conferred by the European Convention of Human Rights or contained in the various sources of EU law or EU treaties the jurors prudence of the Court of Justice for the European Union or the Charter for Fundamental Rights that Claire has introduced in her talk. If, for example, to highlight the significance to this, if, for example, the Scottish Parliament sought to use its new powers to amend the franchise in a way that replicated the ban on the right of prisoners to vote, this would not only be subject to a Declaration of Incompatibility, the courts would not merely ask Parliament to think again about the propriety of that ban, this would be struck down by the courts as such as a violation of convention rights, of Article 3, Protocol 1 on the right to participate in free and fair elections, so the stakes are high and the stakes are high not only because the courts have these powers in relation to the parliament but because as more and more powers are transferred to the Scottish Parliament, more and more powers are transferred from a system which is immune from strong judicial review, from strike down, to a system where the attitude of the courts and the possibility of judicial strike down has to be taken into account. The transfer of the powers of competence over abortion, for example, leads to thorny issues when the government begins to legislate because it seems in that area some sort of judicial challenge would be inevitable. Now, thus far there have been about more than a dozen, I think about fourteen or fifteen challenges to act in the Scottish Parliament, three of which in relation to agricultural holdings, bail conditions and the Named Persons Scheme have been successful, albeit to a limited extent on human rights grounds but it’s also worth noting, now I don’t want to stress this point too much, but it is worth noting that it’s not only the powerless who assert arguments from rights against the state who avail themselves of rights protections in the face of supposedly incompatible legislation. So, for example, defeats for Axa General Insurance against the requirement to make payments where employers have negligently exposed employees to asbestos exposure, defeats for Imperial Tobacco in relation to the display of tobacco products at the point of sale, or at it stands defeat for the Scottish Whisky Association in relation to their policy of minimal alcohol pricing. These defeats might nevertheless be seen as strategic victories where legislation affecting the commercial interests of these bodies is delayed through or by their ability to challenge that legislation through the courts, to delay by five years or so the implementation of legislation that would otherwise negatively affect in that time their commercial interest and I will say a little bit more about that in a moment. The second significance of the bounded competence is less about the judicial and more about the legal process. In common with the Human Rights Act as well as innovations in other jurisdiction notably in Canada and in New Zealand the Scotland Act does not defer questions about rights compatibility to the relatively few cases which reached the courts. At the beginning of the Scottish legislative process, the Scottish Minister responsible for a government bill and the Presiding Officer speaking on behalf of the parliament are required to vet legislation to determine whether or not it is within, at the moment of introduction, it is within the powers of the parliament. Every bill is considered for its compatibility with EU law and with convention rights and at the end of the process the Lord Advocate on behalf of the Scottish Government and the Advocate General on behalf of the UK Government may refer bills directly to the UK Supreme Court to test a question of competence, to test the boundaries of competence before the bill is submitted for royal ascent. Now thus far there have been no occasions in which a minister, the Presiding Officer have said that a bill is outwith the competence of the parliament, is incompatible with EU law or with convention rights and there have been no situations in which the Supreme Court has been asked to review an act of the Scottish Parliament before royal ascent, and either of those outcomes are inevitable. In Wales, for example, three bills have been referred directly to the Supreme Court before royal ascent and again I just wanna make three points about this the third of which brings us back squarely to today’s topic which is Brexit in case you are wondering where Brexit is in all of this. First of all, the Scotland Act and these other mechanisms, the Human Rights Act is one and as I said rights protections in New Zealand and Canada demand of us to think differently, to think politically about rights by engaging Scottish Ministers and members of the Scottish Parliament in questions about compatibility. In order to assert to the parliament that legislation is within the competence of the parliament. The Scottish Ministers will have to take legal advice on that question. The parliament, the Presiding Officer on behalf of parliament will take legal advice on those questions and so that when a bill is introduced, where compatibility issues are raised, the ministers and the parliament should be better informed about the issues that might arise and the threat to legislation that might exist at the end post-royal ascent. So far however, and I think this true in all the jurisdictions that have attempted to find this model, a balance between strong judicial protection for right or meaningful protection of human rights and a strong role for the legislator, a strong role for parliament. So far we haven’t yet got to the stage where we think differently, where we think politically about rights, where rights is not just a question about what is the bear minimum we have to do to avoid defeat in the Supreme Court but where we can think more expansively, more purposefully, more boldly about what positive human rights might entail. Thus far, and this is in research that I hope to publish in September based on interviews with the UK Government and parliament lawyers, thus far the message is that political actors, MSPs, minsters and the Presiding Officer will largely defer to the legal assessments that are offered to them by government lawyers or by parliament lawyers. That is to say they will not think differently about rights or expansively about rights. They will defer to the legal assessment about rights compatibility and therefore to the assessment that is just enough more likely than not to survive in the Supreme Court. We still have to realise the potential of the Scotland Act model in terms of thinking differently, thinking politically about rights and I’ll give you a very quick example of where that might come into play. I say this fully aware that someone from the Scottish Government is sitting within throwing distance of me and that example is that the right of prisoners to vote in the referendum. The European Convention of Human Rights and the right on prisoners to vote does not extend. The jurors prudence of the European Court of Human Rights tells us that it does not extend to referendums. It extends only to elections to the national legislator. Well, that’s fine and the legislation that saw through the independence referendum, that continued the ban on prisoners from voting in the independence referendum, survived a judicial challenge on the basis that that legislation had not been incompatible with convention rights but a more expansive, a more bold, a more political view of human rights might have been, might have seen us take the opportunity in that vote to take a different approach to that which is currently enshrined by legislation in the representation of the Peoples Act in the level of the UK, an opportunity perhaps that was missed. The second point I want to make about this is that I said that there is a danger that wealthy commercial interests can subvert the democratic process by delaying the implementation of legislation even where the case itself might be hopeless or not far off it. One solution to this might be for a more proactive use by the Lord Advocate of his power to refer bills directly to the Supreme Court at the end of the legislative process if an issue arises in legislation where it is inevitable when you pass legislation that affect insurers’ interests, it affect the interests of a tobacco or smoking lobby, a tobacco or alcohol lobby, where it is inevitable where wealthy challengers exist and will bring a challenge then the Lord Advocate might refer a bill to the Supreme Court not to challenge the competence of the bill but to ask the Supreme Court to defend its competence and therefore to avoid delays to the implantation of the legislation and now thirdly to bring us back to Brexit, the most direct effect of Brexit for human rights and devolved areas will be to remove from the Scotland Act at least one limit to that legislative executive competence, that’s the limit that relates to EU law. Now, it’s unlikely, and I think there was a hint of this from the question in the last session, it is unlikely that this will have the same impact as it might have in relation to reserved matters because in relation to reserved matters the power to disapply statutes that are incompatible with the European Charter on Fundamental Rights provides a stronger remedy than the remedy to have a Declaration of Incompatibility and it puts the question back to parliament that has no legal effect, provides a stronger remedy to disapply a statute rather than to simply return the question to parliament in relation to the laws which are incompatible with the charter. That will be lost in England and therefore that power to have incompatible rights legislation set aside by the courts will be lost with it but in Scotland where both the parliament and the executive are more tightly constrained by the European Convention on Human Rights, it’s really in the terrain of the convention and not an EU law that most of the challenges to devolved legislation and devolved acts of the executive have taken place. In fact where on the few occasions the EU law has directly referred to or rights under the EU law has been directly referred to, the Supreme Court has given them fairly short shift, so, for example, the Supreme Court said that there was no right to vote under EU law independent of any convention right. Similarly, when data protection issues were raised in relation to the Named Persons Scheme, the concerns that information about children could be shared without their consent not in accordance with law, the Supreme Court said that there was no need to address the data protection issues as a matter of EU law because they had already found that there was a breach in relation to the convention rights so EU law rights in a way have not yet had much purchase in the judicial sphere in Scotland in relation to devolved matters but what we don’t know is what extent, to what extent the limits in EU law, the rights and obligations enshrined in EU law, are referred by EU law, we don’t know to what extent they play out in negotiations between the Scottish Government and the Presiding Officer’s lawyers, in the negotiations between the Scottish Government and the UK Government’s lawyers in those crucial weeks before the introduction of a bill when amendments might be made to legislation in order to get approval by the Presiding Officer, in order to avoid a reference to the Supreme Court, in order in other words to have the safe introduction and passage of legislation. We do know because of the result of some of the research that has been conducted that such amendments do often take place. We don’t know because of the veil of legal confidentiality on what basis those amendments are made but it seems a safe assumption, for example, that in relation to data protection concerns around the Named Persons Scheme that concerns about data protection, specific issues in EU law might have influenced the UK Government, pardon me the Scottish Government to rethink the initial safeguards for data protection and its legislation that was introduced even if the new safeguards were subsequently and successfully challenged in the courts. So that’s the first bullet point. The Scottish Parliament is supposed to be a parliament that is different and it is supposed to have us think differently about human rights, to think politically and more ambitiously about human rights. The second point, and I’ll deal with the last three more quickly I think. The second point is that notwithstanding the change to competence, there might be hope yet to salvage some of the benefits, the advantages of EU law that have been conferred on us in the arena of rights protection and here what I have in mind is what we call the cross-pollination or cross-fertilisation between the jurors prudence of the European Court of Justice and domestic law jurors prudence or the jurors prudence of the European Court of Human Rights. In other words some concepts that are protected at first at the level of EU law that have been defended in the jurors prudence in the Court of Justice might have contaminated, I don’t mean that in the pejorative sense, might have contaminated domestic law and convention rights jurors prudence. I will give you some examples that will clarify what I mean by that. So, for example, in relation to the convention, the jurors prudence of the Strasbourg Court which polices the European Convention of Human Rights, its litigation in relation to the rights of those who have been detained by the police, those rights have been enhanced by the European Convention of Human Rights with reference to the European Court of Justice, with reference to EU law. So, for example, where it is said that confession is made, where the threshold for the convention might be that confession is made without a lawyer might be inadmissible, that has a reliance on EU law and on the jurors prudence of the court and directives under EU law, has seen that be expanded beyond confessions to mere statements that might fall short of a concession, the consent of the right is expanded at the level of the convention by its reliance on EU law. Similarly, in relation to the Named Persons Act, we’ve already seen or have already suggested that when the domestic courts, when the Supreme Court came to look at the data protection issues, they felt they didn’t need to go to the European Charter on Fundamental Rights, they didn’t need to go to EU directives because they had already been able to find sufficient protections, sufficient safeguards in the European Convention of Human Rights. That’s at the level of the convention rights. There is a level of domestic law, if not the content of EU law, then at least the tools which we have to protect rights might be, might have seeped into our domestic jurors prudence and again I’ll just speak very quickly about three of those. First of all, the test of proportionality, traditionally the UK courts do not know in judicial review a test of proportionality, that an action taken by the executive has had a disproportionate effect on a concerned individual or group. Rather we apply a much higher threshold. In order to succeed at judicial review you have to show that the decision was irrational, not disproportionate, irrational so unreasonable that no reasonable decision-maker could have come to the same decision but under the influence of EU law as well as the law relating to the Convention of Human Rights, the domestic courts have begun to grapple with and begun to transplant into domestic jurors prudence, i.e. in cases that don’t merely concern rights under the convention of EU law, have begun to graft into domestic law jurors prudence a test of proportionality. In other words, to take an example, the Supreme Court have suggested that even if citizenship is not a right conferred by the convention and is not a right conferred by EU law, it is nevertheless a right that is so fundamental that where citizenship is removed it might be appropriate not to ask whether the government had acted so unreasonably that no reasonable body could have taken the same decision but to ask whether the removal of that citizenship was disproportionate in pursuit of an aim in the case of FAM, the aim of security of prevention of terrorism. Secondly, as well as proportionality, substantive legitimate expectation, a doctrine well known to EU law but not so well known to the domestic courts until they borrowed from EU law in a case called Coughlan v North East Devonshire. The Council, in order to hold that where a care home made a promise to a severely disabled women that she would have a home for life after the disruption of a move from one home to another, but that promise was legally binding and gave substantive legitimate expectation that constrained the ability of the local authority to then remove her when it was no longer cost effective to keep her in the home that they had promised for life. Again through domestic law, or through domestic law authorities, we now have authority for propositions that were previously known only in the law of the European Union. And so there might be as Brexit approaches and as we move beyond Brexit there might be opportunities to persuade the Supreme Court that some of these doctrines, of proportionality, of substantive legitimate expectation, the more detailed procedural expectations that we might have, that some of these can be supplanted even further into domestic laws, such as they would survive any severance with EU law. The third bullet point, and I am aware sorry that I am rattling through this quite quickly, but the third bullet point is that changes to devolved competence are about more than substance, they raise important questions about process too. Changing the devolved competence does not simply withdraw rights, it also raises important constitutional questions about how those changes can be taken about. In particular we have the vexed question of legislative consent. So section 28(7) of the Scotland Act, section 28(7) of the Scotland Act says that the UK Parliament retains, despite devolution, the UK Parliament retains the right to make law for Scotland, even in devolved areas. But in order to police that boundary, political convention, the Sewell Convention, was established that said that the UK Parliament would not normally legislate in devolved areas without the consent of the Scottish Parliament. It would retain its right to legislate in those areas but a political convention would say that it would not normally do so without the consent of the Parliament. And so Sewell would seem to be engaged, I should say that the legislation has been expanded to cover not only UK legislation that is relative to or relates to devolved areas but also legislation that amends the competence of the Parliament itself. The powers of the Parliament itself are in fact a reserved matter. But nevertheless changes to those powers, changes that effect the competence of the Scottish Parliament are subject to legislative consent, indeed were subject to legislative consent during the passage of the Scotland Act 2012 to some effect. And so the Sewell Convention would seem to be engaged with regards to Brexit, both with regards to legislation that amend legislative competence, and here Sewell might, we’ve had the Secretary of State for Scotland say that Sewell would be engaged in relation to the Great Repeal Bill, and in relation to legislation in areas that as it stand should, as I’ve said devolve back to revolve back to Holyrood rather than to Westminster. If the UK Government decides that it intends that fisheries, agriculture and environment is best dealt with at the level of the UK then it should not assume to have those powers, it should assume that it requires the consent of the Scottish Parliament to take those, to return those powers to the level of the UK. Now, in the case of Miller-v-The Secretary of State for Brexit the Supreme Court rejected a Scottish Government intervention to the effect that the Sewell Convention is engaged by the Article 50 Bill and that this now had statutory force given the Sewell Convention is somehow recognised in section 2 of the Scotland Act. I just want to mention this briefly because it’s relevant to Brexit and to the process of Brexit what the Supreme Court did not decide in the Miller case. A criticism that emerged of the Scottish Government has been that it wasted, a Daily Mail story, that it wasted £146,000 I think it was of legal fees on an 11-0 defeat with the Supreme Court unanimously turning down, rejecting, the intervention by the Parliament that Sewell was engaged and the Scottish Parliament must grant its consent to the Brexit process. Well, there’s two things that I want to say about this, then three things about that, actually three things. First of all was this a resounding defeat for the Parliament? Was Nicola Sturgeon elbowing in to the process which after all EU is a reserved matter. First of all the Scottish Government seems to me were reluctant to intervene in this case. I don’t think the Scottish Government intended to intervene in this case least it have unintended consequences for how Sewell might be engaged in other areas, such as the British Bill or Rights or the Great Repeal Bill, where more might be at stake. But following a decision of the High Court in Northern Ireland just before the key Miller case, the High Court in Northern Ireland said two things: first of all in relation to changes in devolved competencies in Northern Ireland legislative consent was not needed, the UK Government could legislative without the consent of the Northern Ireland Assembly; and secondly that because the Sewell Convention is now in statute in Scotland in section 2 of the Scotland Act, that the position might be different in Scotland. That decision by the High Court in Northern Ireland basically forced the Scottish Government’s hand – it could not leave the question where the Northern Irish High Court had left it with the assumption that legislative consent is not necessary. The High Court in Northern Ireland said that this was a political rather than a legal rule. Well the Supreme Court then said this, what it did not say, let me return to that point, what it did not say, they did not say that the Sewell Convention is not engaged that the UK Parliament is not required to seek the consent of the Scottish Parliament to trigger Article 50, or with any knock on effect for the Great Repeal Bill or with withdrawal from the Convention or the British Bill of Rights. What they did say however is that this is a political not a legal rule. Not withstanding section 2 of the Scotland Act which recognises the existence of the convention rather than puts the convention on a statutory basis – this is a political rather than a legal rule. The convention might be engaged but that’s for political institutions to decide and debate in the political arena not for the courts to police and therefore that removes an opportunity for lawyers to intervene in relation to the Sewell Convention section 2 of the Scotland Act in any future cases that revolve around the British Bill of Rights, the Great Repeal Bill or withdrawal from the convention which might engage those rights. Now I’ve got a wee bit to say about the British Bill of Rights but I’ll maybe leave that for questions as I want to finish on a couple of points. Secondly, that by keeping the flame alive, the Supreme Court keeping the flame of Sewell alive at least as a political if not a legally enforceable rule. The Scottish Government seems to me are now possessed of two bargaining chips regarding the UK and EU negotiations. The first, which seems to have been exercised today, it would have been helpful to know that last night, is the threat of a second Independence Referendum. That unless we can achieve something substantial, a different deal for Scotland, probably around the notion of single path of access to the single market, then Scotland will be confronted with a choice of its preference between a hard Brexit or independence. Critics who say Nicola Sturgeon should take Indy Ref off the table ignore the fact that this is one of the most significant bargaining chips she has against a UK Government who largely seem to ignore the proposals put to them. Secondly however, is the possibility that the Scottish Parliament might withhold consent to key aspects of Brexit. That where Brexit does engage the Sewell Convention the Scottish Parliament might use the withholding of consent or the possibility of the threat to withhold consent in order to bring concessions. Now you will not achieve single market membership through that. You won’t achieve the big ticket items. But on process issues such as for example supervision by the Scottish Parliament over the exercise of Henry VIII powers in relation to laws following the Great Repeal Bill, on those process issues the power of withholding consent might be all the more forceful – “we will refuse consent to the Great Repeal Bill unless the Scottish Parliament is given a greater influence or a greater input, a greater power of review over the way in which the UK Government exercises those repeal powers.” And finally I just want to finish where I started, which is the idea that devolution is supposed to encourage us, dares us, to think differently, to think politically about human rights. Because human rights are devolved because Brexit and human rights debates cause us to examine both our approach to rights, and as Nicola Sturgeon said today, the sort of country that we want to be. We are once again, so soon after the Calman and Smith Commissions, once again presented with an opportunity for those who seek to go beyond rights protections that we currently enjoy to look both to broaden and deepen those protections. To think again about the division of competencies between Westminster and Holyrood and not only to think about the substantive division of competencies but the rights protections and the rights agenda that we might push in an area - human rights that by and large are a devolved area. So I just want to highlight three, funnily enough, points where this difference, the devolution of human rights might make a difference. I am not going to touch on these in two much detail – I’ll through them out there as maybe talking points. First of all the Scottish Government has consulted on a rights based approach to social security in which principles of dignity and respect are promoted on the face of legislation and in a charter which will give some bite to the idea that social security is not just a benefit but a human right – a rights based approach to social security that is markedly different to any approach that we might anticipate the UK Government from taking. This I think gives us an opportunity for civil society, for groups like the Equalities and Human Rights Commission, the Scottish Human Rights Commission, the interested civil society groups, the public interest groups. This gives them an opportunity I think to engage with those sorts of consultations, to engage in the parliamentary process which give effect to this and to shape what those principles are, what those principles mean, what the charter on dignity and respect might contain and entail and how it might be enforced. Now I’ll just suggest this, that courts are reluctant, certainly courts in the UK are reluctant, to give judgments that influence the way in which finite resources are spent. It seems to me unlikely that strong judicial protection of a right to social security will be welcomed or utilised by the courts, a heavy degree of deference will be used. But we might look at alternative mechanisms of enforcement, for example enforcement of the charter, enforcement of dignity and respect by the Scottish Public Services Ombudsman in conjunction with the new Equalities and Human Rights Committee in the Parliament might give real bite to dignity and respect in respect to social security. If we think, as lawyers tend to think, that rights are meaningless unless they can be argued by lawyers in a court, then weak powers of judicial review such as those in the Human Rights Act to declare legislation incompatible with obligations of dignity and respect might be one aspect of giving this judicial bite but without inviting courts to make difficult judgments on the allocation of scarce resources. Secondly, in relation to equalities, the limited devolution of equalities, of competence in equalities in Scotland has been slightly enhanced by the Scotland Act 2016 which grants to the Scottish Parliament powers to legislate, competence to legislate on the make up of public boards. It seems to me two things present themselves here as the result of Brexit. First of all the Scottish Parliament has the power to set an example by legislating to its fullest effect in that area and has indicated that it will legislate to its fullest effect in this area to create an obligation to public boards to have 50:50 balanced gender – a gender balance on public boards on a 50:50 basis. But secondly and perhaps more significantly because Brexit invites us to rethink the competence and division of competence between Holyrood and Westminster we can rethink some of those areas of equalities implementation that have been retained at Westminster and that were retained even following the Smith Commission. So for example the Labour Party which seems from accounts of the Smith Commission to have argued against devolution of employment law and regulation seems to have come around to a slightly different view and the Scottish Government might find some broader support in the Parliament for the devolution of employment law and regulation such as to give even further effects to its more progressive views on equalities and human rights. And then fourthly, thirdly sorry, I’ll just say this that whatever the different approaches taken they will require an engaged and active civil society and require forums through which an engaged civil society can influence the protection of rights and equalities in a devolved sphere. The introduction of a new Equalities and Human Rights Committee it seems to me is a positive step by creating one such forum in which civil society can engage with the Parliament. But one of the unfulfilled promises of the Parliament is that Committees themselves should have powers of initiation, not buried under scrutiny of legislation. They should have the power to go out and inform and to educate and to upskill civil society – to engage with civil society as to how equalities and human rights can best be protected. And so one would hope that civil society will take the opportunity to engage with the Equalities and Human Rights Committee and that the Equalities and Human Rights Committee will take the opportunity to engage with civil society for the protection of equalities and human rights that is not just about strong powers of judicial review in the courts for those who can afford it, and dares us to think differently, politically more ambitiously, more boldly about what equalities and human rights might mean. That seems a daunting prospect. Then I’ll finish by saying that’s the very ambition of the Scottish Parliament in it’s creation and it seems to me a noble one.
The Scottish legal team is pleased to present the third in our series of four webcasts, equality: online. These webcasts are aimed at providing flexible training to practitioners who work with legal issues in their day-to-day work. In this episode Jayne Hardwick, Senior Lawyer from the Equality and Human Rights Commission and Alice Stobart, Advocate from Westwater Advocates, provide an introduction to EU equality legislation, discuss key case law and set out the principles courts follow when applying this legislation.
Last updated: 08 Feb 2018