Item 3 is an evidence session with the Scottish Human Rights Commission on “Scotland’s National Action Plan for Human Rights 2013-2017”. I welcome Professor Alan Miller, chair, and Shelagh McCall, commissioner. Good morning to you both.
I understand that Professor Miller wants to make a short opening statement—feel free to do so. We will then have questions from members.
Thank you, convener, and all committee members. I very much welcome the opportunity to open up a dialogue between the committee and the Scotland’s national action plan process as it unfolds over the months and years that are ahead of us. I hope that this is just the first piece of engagement that we will have in that context.
Thank you for giving me the opening few minutes to highlight areas that it would be worth exploring today and going forward. There are questions such as: what is SNAP, as it has become known? Why does Scotland need it? What will it do? What does it mean for the committee?
The inspiration that has driven Scotland’s national action plan to where we are at the current stage of its development comes from the words of Eleanor Roosevelt, of which some members might already be aware. She was the co-architect of the Universal Declaration of Human Rights in 1948, which is the foundation of all human rights law and values as we know them today. She said:
“Where, after all, do universal human rights begin? In small places, close to home—so close and so small that they cannot be seen on any maps of the world. Yet they are the world of the individual person; the neighbourhood he lives in; the school or college he attends; the factory, farm or office where he works ... Unless these rights have meaning there, they have little meaning anywhere. Without concerted citizen action to uphold them close to home, we shall look in vain for progress in the larger world.”
That encapsulates the ambition of SNAP, combined with pragmatism about how we can best and most effectively get there.
The Scottish Human Rights Commission has led the process, but it no longer belongs to the commission—it is now a shared responsibility, because it is Scotland’s national action plan and it belongs as much to you as it does to the commission and the rest of the country.
What is SNAP? Its vision is very straightforward: Scotland should become a country
“where everyone is able to live with human dignity”.
Its purpose is to be a practical road map for the progressive realisation of internationally agreed human rights, to enable all of us to live with human dignity. It was launched on 10 December 2013—international human rights day—and some of you might recall that on that day there was a debate in the chamber in which cross-party support was evident. Present on the day of the launch representing the Scottish Government was the Deputy First Minister and representing the Council of Europe was its human rights commissioner, Nils Muižnieks.
SNAP is in its early stage of development but it has already attracted significant international interest. Just next month about 10 other countries will be brought to Strasbourg to learn from the experience of Scotland’s national action plan which, we hope, will give them some guidance on how they might do something similar. The office of the United Nations High Commissioner for Human Rights, in Geneva, is also very supportive and is promoting SNAP to other countries.
It is not a traditional action plan with which all of us might be familiar: a tick list that comes down from on high about what a Government is prepared to do or not do, or an unrealistic wish list that comes up from below and does not have any evidence base or chance of effective implementation. It is a collaborative process: a transformative programme of action to bring about sustainable culture change.
The action plan meets international best practice for three reasons. It is evidence based, which I will come to in a second. It was inclusively developed by a drafting group that consisted of a wide range of public bodies from the Government, the national health service and the Convention of Scottish Local Authorities, through to the Scottish Trades Union Congress, the Scottish Council for Voluntary Organisations, the Health and Social Care Alliance and Amnesty International. Its implementation will be independently monitored. Indicators will be developed, and the process will be overseen by the former Auditor General for Scotland, Bob Black.
Why does Scotland need an action plan? For the first time in Scotland, the Scottish Human Rights Commission mapped over four years where human rights are in Scotland and to what extent they are realised, particularly by the most marginalised in our community. We published and shared the findings of that mapping, which led to a process of participation to determine whether they were accurate. The findings were largely affirmed in public interaction.
The conclusion of that mapping was that Scotland has made progress since devolution but could do better. If we look at the progress using a traffic-light system, the structure of Scotland’s governance and legislative process—in other words, you, to a large extent—has mainly green lights. Because of the Scotland Act 1998 and the Human Rights Act 1998, almost all legislation was in compliance in the human rights context. However, when it came to process—that is, implementing legislation into policy or strategies—the results were mixed: green turned to amber more often than we wanted. When it came to outcomes—the actual lived experiences—amber turned to red. The good intentions of Parliament’s legislation were not consistently turned into good practice.
Where a human rights-based approach had been used—that is, where people were empowered to really understand their rights—and where public authorities understood how to meet their duties and implement them, the outcomes for people were better. A human rights-based approach is therefore seen as the agent of change for the realisation of SNAP.
How will SNAP be implemented? We come closer to the Justice Committee in that regard. Three outcomes were agreed: that Scotland should strive to achieve a better culture, better lives and a better world. Nine priority areas were also agreed, including justice and safety. Common issues of interest to you would be policing, corroboration, victims’ rights and violence against women.
In order to identify concrete actions in all those areas, human rights action groups are being put together—again, representing the breadth of public life and civic society. Innovation forums will be held to examine best practice in Scotland and beyond, and the whole process of implementation will be overseen by a leadership panel, which will report annually to the Scottish Parliament in order that progress against objective indicators can be measured and debated in the Parliament.
What does SNAP mean for the committee and the Parliament as a whole? First, it would very much help the process if the Justice Committee were to take an interest in facilitating the Parliament’s having an annual debate when the annual report is presented. The first report will come out towards the end of the year just prior to international human rights day on 10 December.
Secondly, because of the commonality of various issues with which the Justice Committee is concerned and which SNAP will undoubtedly be seeking to progress, I suggest that the committee consider establishing a rapporteur to have an on-going dialogue with the SNAP process and to ensure the exchange and free flow of information.
Finally, it might help the Scottish Parliament as a whole meet its responsibility of monitoring Scotland’s implementation of international human rights legal obligations if it considers what has happened over the past couple of years with regard to the three Cs—Cadder, Carloway and corroboration. Indeed, there is probably no better example of the need for that responsibility to be met.
That process, painful as it has been for many of us, would not have been necessary if more attention had been paid and more respect had been given to recommendations made by international human rights bodies 10 or 15 years ago, which pointed out that issues had to be addressed. The committee, the Parliament and Scotland as a whole would do well to have a more proactive engagement with improving the monitoring of international human rights recommendations.
Thank you very much, convener. I do not want to take up any more time with my remarks because I would welcome having as much dialogue as possible. I simply hope that this is the beginning of the relationship between the Justice Committee and SNAP.
Do members have any questions?
At the end of your remarks, Professor Miller, you mentioned some of the issues that the committee has recently been trying to make its way through in the Criminal Justice (Scotland) Bill. In such issues, there seems to be a conflict between the human rights of different groups. For example, there seems to be a conflict between the human rights of victims, who might want their day in court, and the human rights of the accused. How might the approach that you are advocating have assisted in what has been a very difficult process? After all, whatever decision is made, someone is going to feel that their human rights have been disregarded.
I will ask my colleague Shelagh McCall to respond to that question.
There are two ways of looking at this issue.
First, on your question of how this approach would have helped the committee with its own process, we are seeking through SNAP to put human rights at the heart of the development of law, policy and strategy and their implementation on the ground. The process seeks to build consensus among those who have to deliver services and those who will receive the services at the other end—in other words, those whose human rights are directly affected.
An understanding of all the international human rights obligations informs that process from the outset and allows the Parliament, policy makers and so on to be proactive, rather than reactive as happened with Cadder and Carloway. It increases their knowledge of international human rights and allows them to make the connection with the domestic policy situation.
Secondly, one of the steps that has been agreed as a part of the action plan is that the Scottish Government along with others, including the commission, will monitor the human rights impact of the criminal justice reforms that follow from Carloway and so on. As a result, there will be an opportunity for scrutiny after the legislation in question has been passed to find out whether it has had the intended impact on the ground or whether any problems have arisen that need to be sorted. I think, therefore, that the SNAP process assists at both ends.
But surely if we are reviewing what has happened and seeing whether any problems have arisen, we will still be reacting to problems rather than foreseeing them.
Have you been invited to take part in Lord Bonomy’s review group?
Not as yet, but I understand that an invitation might be coming.
So it might be in the post. That is good.
You have made important points about victims’ rights and have referred to the Scottish Government’s review on violence against women, but are there any particular issues that we should be aware of with regard to victims’ rights not being respected in the court process? Can you give us any advice on such issues?
I should add that I am thinking not so much about the Victims and Witnesses (Scotland) Bill as about future strategies, particularly with regard to victims of domestic and sexual abuse. Are there any human rights approaches that we should want to see demonstrated in that respect?
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The United Nations Committee on the Elimination of Discrimination against Women has recommended that the strategy that the Scottish Government is developing on violence against women be complemented with an action plan and concrete steps identified so that everyone can see the actions that are going to be taken and what will achieve the outcomes that are sought. The Government and others can then be held to account against that action plan rather than against the broader strategy.
One element of SNAP priority 6, which is the justice and safety priority in the better lives outcome, is the development of that strategy and the action plan. The human rights action group in that area will convene and bring parties to the table to identify the steps that should be taken to address the issues that you have highlighted.
Good morning and thank you for coming along. I have a personal question about the international interest in what is being done. You have said that, since devolution, Scotland has made great progress in this area. I found that quite interesting, but then you mentioned what is happening beyond Scotland. Are we in the vanguard or breaking new ground with this approach? Is SNAP recognised across the world as something new?
Perhaps I should put all this in context.
Twenty years ago, the UN called on all countries to develop national action plans. Four years later, the European convention on human rights was incorporated into United Kingdom and Scottish law and then a national human rights institution was established. The next step is for that institution to lead the development of Scotland’s action plan to join about 30 other countries around the world—although Scotland is, I should point out, the first country in the UK to do so.
International best practice on how that might be done has been developed. First, there should be an evidence base and, in that respect, the commission has spent four years working on the mapping. Secondly, the plan should be inclusively developed, and a distinctive feature in Scotland has been the bringing together of Government and public bodies such as the NHS and the Care Inspectorate, non-governmental organisations and civil society around the same table to identify what needs to be done and how best it can be done. Thirdly, there needs to be independent monitoring, with someone like the former Auditor General overseeing the development of objective indicators to measure progress so that we and the rest of the world can gauge the impact of the plan.
Even though that process is still at a very early stage, it has attracted a lot of interest. Next month, for example, the Council of Europe is convening a round-table session in Strasbourg to look at what is happening in Scotland as well as Finland and one or two other European countries, and the UN has promoted the process as an example that other countries can learn from.
Finally, the Scottish Human Rights Commission is one of more than 100 national human rights institutions around the world and, next month in Geneva, all of them will be looking at how Scotland has progressed to this stage and what lessons can be learned for their countries.
I am new to the committee, but when we considered the Cadder case and Lord Carloway’s recommendations we looked at a lot of international examples. My view is that it is easy to compare pieces of legislation but difficult to compare judicial systems and even more difficult to make comparisons between the ways in which legislation is being implemented. How can we make international comparisons with regard to culture change? I have to say that I find that concept a bit difficult. How are we going to monitor and come to an understanding of how much the culture in Scotland is changing compared with the culture change that has taken place in other countries?
That challenge is being faced and addressed. The innovation forums that SNAP will develop will look at that, as well as at many other questions in order to learn, to contribute to the development of best practice with regard to the objective indicators for measuring economic, social, cultural, civil and political progress and the implementation of internationally recognised rights, and to find means of capturing not just statistics but the living experience of real people, particularly those who have the smallest voice in their communities, who live in the most remote areas or who have disadvantages. Capturing that human element along with the objective indicators, learning from others and increasing the ability of us all in the world to sharpen what is a necessary tool are very much what is on the table as far as SNAP is concerned.
We will move on.
Good morning. I am delighted with the publication of the action plan; indeed, I remember hearing a number of years ago how one of the ambitions of the commission and indeed Professor Miller was not necessarily to look at issues that were being highlighted in the newspapers—slopping out, for example—but to address the fact that the people in those situations could not get justice. As Professor Miller has just said, we are dealing with people’s real life experiences.
Having read the action plan, I have some questions about outcomes. Outcome 2 has three action groups, one of which is looking at justice and safety—issues that are obviously pertinent to our committee. The Scottish Human Rights Commission will oversee the finalisation and publication of an action plan for victims of historic child abuse. With regard to violence against women, the action group in question will ensure that it deals with real life experiences. My question for Professor Miller—and perhaps for Ms McCall—is whether any areas in the justice and safety element of outcome 2 should be prioritised over others. Moreover, could the Justice Committee play a role with regard to any responses that might be received or any evidence that could be taken?
I will kick off with a response and then Shelagh McCall can come in.
You mentioned one particular example that has a compelling dimension. I know that many members will have received in their mailbag correspondence from constituents about victims of historic child abuse. Something has to be done about that issue as a matter of urgency. The survivors have shown remarkable dignity over the years but that cannot be the only positive thing that can be said about how the issue of historic child abuse has been addressed in Scotland.
This is a good example of how the process of bringing to the table people with those real and sharp life experiences and people with the responsibility to do something about the matter can work. The commission has facilitated an interaction process in that area and for the first time has brought to the table victims, nuns, Government ministers and local authority representatives to agree a way forward to deliver justice to those victims. We are on the cusp of the Government’s response to that draft action plan—we will receive it literally within the next month or two—and it will be a very early indicator within the SNAP process of what progress, if any, is going to be made.
Margaret Mitchell is working on a member’s bill for an apology law, which is very much part of the draft action plan and which everyone around the table has agreed is something that really needs to be explored. It is very good that she is doing a lot of the heavy lifting on the issue, but the Government also has the responsibility to ensure that the matter is progressed and to give it support. That early test—an early outcome, if you will—will be measured and reported to Parliament towards the end of the year.
Following on from Alan Miller’s comments about historic abuse remedies, I should point out that there are a number of pieces of legislation that might end up before the committee for scrutiny or on which the committee might be interested in taking evidence. Professor Miller has mentioned the apology law proposal, but there are also issues of prescription and limitation that need to be dealt with to enable survivors of historic abuse to access civil justice. The rapporteur system that Alan Miller described earlier, in which someone would liaise between the committee and the SNAP process, might also have benefits in that respect.
Such a system could help in another way. In the Victims and Witnesses (Scotland) Bill, which the committee scrutinised to an extent, the Government proposed forming a national confidential forum for survivors of historic abuse. That part of the bill found itself with the Health and Sport Committee. The danger in such a situation is that that committee would not scrutinise such a proposal from the perspective of the impact on human rights. The Justice Committee might wish to take an interest from that perspective, to ensure that the human rights implications do not fall between the cracks. That would be a benefit of the rapporteur system that we are talking about.
Ms White asked about prioritisation. In the justice and safety section, the action plan sets out agreed actions for 2014. The process involves short, medium and long-term goals, so actions will continue to be developed and prioritised by the relevant human rights action group.
I will give an example of a mechanism that the committee already has in place to assist in the process. Police Scotland has committed in 2014 to
“identify opportunities to further embed human rights within the structures and culture of policing”,
which includes looking at training issues and so on. I am aware that the committee is hearing evidence about the implementation of the Police and Fire Reform (Scotland) Act 2012. That is an opportunity to question the police about the steps that they are taking in that respect and the commitments that they are prepared to make, and to monitor progress on that. That is an example of how the committee can engage with the SNAP process within its existing agenda.
I was going to ask about other committees, but Ms McCall has mentioned how they could work with this committee, so she has answered my question.
The bill is now an act of Parliament, anyway.
I am talking not just about that act but about how human rights can be considered in all committees, not just this committee. Ms McCall gave us an example of that, so I am happy with that.
I am sure that John Finnie will pick up on the police issue—I know that he is next to speak.
You are taking over as convener as well now; it is another Margaret Mitchell moment. I call John Finnie, to be followed by Margaret Mitchell.
I know that the commission awaits its invite from Lord Bonomy’s group, with the purpose of monitoring reforms. We value the input that we get from you when we are scrutinising bills. Before that stage, do you engage with officials on the compilation of proposed legislation? If so, is any conflict associated with that for your further involvement with legislation as it develops?
No. I am pleased to say that, in recent times, there has been more engagement between bill teams and the commission so that, as Shelagh McCall said, human rights are on the table at an early stage when policies and legislation are being developed, rather than at the end, when positions can become more entrenched and it is more difficult to be persuasive and open minds to the need to ensure that measures comply with human rights. That engagement is taking place and is welcome.
In the mapping of how human rights are realised in Scotland, there are other issues that relate to the Parliament, such as whether the Parliament might want to consider whether it can do more to increase awareness, understanding and know-how about implementing international human rights standards in practice. More analysis could be done when it is said that a bill is human rights compliant. The Parliament could ask what the reasons for saying that are, which could produce a more informed and measured debate. As a shared responsibility, all of us can improve how we engage with human rights in a number of ways. The earlier we do that, the better.
In the equal marriage debate, the phrase “hierarchy of rights” was much used. Does such a hierarchy exist? In these times of economic restraint, should one set of rights be prioritised ahead of t’other?
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Human rights are not a fair-weather friend. They do not leave the table in times of austerity and come back only when things are better. In fact, you could argue that there are more compelling reasons why human rights should remain on the table in times of austerity. There is frustration, however. There is a lot of very good international best practice on how to take tough and very pragmatic decisions in times of austerity in a way that both respects the human dignity of all those who can be impacted and ensures not only that the measures taken are the minimum necessary and do not impact disproportionately on those who are least resilient to them, but that the maximum available resources in a budget are allocated to meeting people’s needs in living a life of dignity.
There can be a temptation just to put human rights to the side when the going gets tough, but that is certainly not what human dignity and the international human rights legal system require. The question whether there is a hierarchy of human rights represents a slippery slope that we should not go down. The experience of the SNAP process in identifying what needs to be done is that it is a question of finding the means of reconciling what can be competing interests, claims and sets of rights in a way in which consensus can be achieved. The human rights principles of proportionality can be the mechanism for achieving that.
Human rights therefore have a lot more potential than people perhaps realise for reconciling differences that on the surface would appear to be mutually exclusive. The question of corroboration is one example of how the rights of victims of domestic abuse and so on and the right to a fair trial can be reconciled if the broader human rights context is applied.
I stand to be corrected, but I understand the National Assembly for Wales embedded the rights of the child in legislation. Can you say what the benefits of that are? People want to know that doing that is ultimately meaningful rather than just an academic exercise, if you like. What is the resulting difference for the children of Wales?
What you say about Wales is true. It was a lost opportunity for Scotland not to replicate at least, if not go beyond, what has been done in Wales. The United Nations Children’s Fund recently produced a broader study that looked at how the United Nations Convention on the Rights of the Child is implemented in a wide variety of countries in a wide variety of ways. It found that where there was incorporation of the UNCRC in domestic law, in the same way in which the European convention on human rights has been incorporated in our domestic law through the Human Rights Act 1998, the outcomes were much better. It also found that there was a much deeper understanding among children, families, the public, policy makers, decision makers and law makers as to what the convention actually meant. It was more than people just thinking, “We should do it when we think it’s appropriate or when it can be done.” The experience internationally is that incorporation of treaties such as the UNCRC leads to better outcomes for children.
My final question is on the police. Officers who join Police Scotland swear an oath that includes a reference to human rights. I do not know whether Police Scotland has had any engagement with you—or you with it—on what that actually means and how it should be delivered in training. Has there been such engagement? If not, would you be prepared to engage in that respect?
There has been very constructive engagement between the SNAP process and Police Scotland, which, as the publication notes, committed itself to a programme of further embedding human rights in the culture and accountability of the police. There is a specific commitment to develop human rights training for police officers to put flesh on the bones of the oath that, as you said, is now being taken. As Shelagh McCall said, that will be one of the early and easily measurable indicators of progress. It will show whether or how the training is implemented and what difference it is making to the culture that we want to see and which Police Scotland has said it is committed to developing through SNAP. There has therefore been very constructive engagement to date and, as I said, that will be one of the early and measurable indicators of progress for SNAP.
Thank you very much.
Good morning. There was quite an emphasis in your opening remarks, Professor Miller, on collaborative work and the evidence base. However, what legal status does SNAP have? How can it ensure that public bodies are actually adhering to it?
Those are searching questions. The legal status is there, but it is not as full as it should be. There is a legal duty on all public authorities to comply with the Human Rights Act 1998 and the Scotland Act 1998, and Parliament is one of those bodies. However, SNAP is introducing not just the rights in the European convention but the broader rights that we all need in order to live a life of dignity, such as the right to an adequate standard of living, adequate housing and the highest attainable standard of health, and the rights of children, disabled people and women. Those make up the set of international human rights that the UK has recognised, although it has not given all of them the status that has been given to the rights in the European convention.
One of the innovation forums that will be held later this year will examine and take stock of what Scotland and the UK have done in incorporating that broader range of duties. It will consider what would be the benefits of incorporating further treaties that are seen internationally as being necessary and are recommended by the UN, the experience of other countries that have done that or are thinking of doing it, and therefore the best way to proceed in Scotland, no matter the outcome of the referendum. That will be one of the early innovation forums. It will begin to look more broadly at giving the proper status to all internationally recognised human rights, which would lead to better outcomes and benefit for people, especially the most marginalised.
You mentioned the Scottish Parliament. How can the Parliament ensure that, with a majority, the Government is accountable for legislation? In particular, how can we ensure that we achieve priority 6, which is to
“Enhance respect, protection and fulfilment of human rights to achieve justice and safety for all”?
You emphasised that we are falling down badly on outcomes. How can issues such as court closures, police counter closures, corroboration and the introduction of criminal legal aid contributions be looked at in a human rights forum?
To clarify, in the first eight years of the Parliament, there was also a majority Government under a coalition, and there was a period of only four years when we had minority government. Unfortunately—or fortunately, as the case may be—we have had about 10 years of majority government. I want to put that on the record, because people forget that we had majority government for eight years previously.
The point is that we have majority government with no checks and balances. To an extent, coalition provided a check or balance.
With respect, I was here for those eight years and I remember practically never getting a single amendment through. In fairness to whoever is in power, that was the position historically.
Convener, can I—
I want to move on, because I have made the point that we had eight years of majority government previously.
I think that I have raised this point before, when Jenny Marra was a member of the committee. No matter what party members are in, we all believe in human rights. I am not here to talk about just the Government’s position. There is a cross-party approach. I do not accept those comments from a member of a party that introduced the bedroom tax and benefit cuts.
Now, now. Jackets off. You see what you have done, Professor Miller. I do not know how to get a balance of human rights in here.
Please proceed, Professor.
To pick up on the point that Margaret Mitchell made, at the outset, the public wanted the Parliament to be as big as it could be and to be above partisanship and look towards the public interest and benefit. As we have said, part of that is about looking at the broad international human rights duties that are placed on Parliaments and Governments through treaties that have been signed internationally. As Sandra White says, if that bigger set of values is given more prominence in the deliberations of Parliament and Government, it is more likely that those values will be applied in legislation and policy. Human rights play a part in the Parliament accepting its bigger responsibility to the public and to improve outcomes.
As for Margaret Mitchell’s interesting and lively point about majorities and minorities, the commission was very pleased with the Justice Committee’s majority view on the issue of corroboration in the Criminal Justice (Scotland) Bill. It certainly set an example. Whether you agree or disagree with its decision, the committee took a lot of evidence and came to a view that did not reflect the parliamentary majority. That in itself showed that the committee was considering bigger responsibilities, and that was welcome.
I will go back to John Finnie’s comment about a hierarchy of human rights. Can you say something not about the hierarchy of rights but about competition between rights—for example, the right to private and family life, the right to access to justice and the right to an effective remedy? We might be straying a bit into reserved matters, and this could perhaps be considered under SNAP, but how might you judge and tackle huge live problems—for example, when a married person who has committed an horrendous crime and is up for extradition claims the right to family life?
I agree with Alan Miller that it is not right to think about a hierarchy of rights. I will confine us for the moment to convention rights, such as the ones to which Margaret Mitchell referred. I suspect that the committee well knows that some of those rights are absolute rights that have to be respected, while others are what are described as qualified rights. In other words, they might be rights but the state can interfere with them in certain circumstances. Under article 6 of the ECHR, access to justice with a fair hearing and a fair trial is an absolute right—there is no equivocation about that.
On the other hand, the right to private and family life is a qualified right, which means that the state is permitted to interfere with that right provided that such interference is necessary, seeks to address a pressing social need and is done proportionately. We are talking about the smallest measure that is necessary in order to achieve a legitimate purpose. In the example that Margaret Mitchell highlighted and the sorts of extradition cases that she described, that legitimate purpose would be the investigation and prevention of crime.
When qualified rights compete with each other—going back to the equal marriage debate, one thinks of the right to private and family life and the right to freedom of expression—Parliament must strive to fulfil everyone’s rights. However, where a balance needs to be struck, it needs to apply the test of necessity and proportionality and to think about the purpose of what it is doing in order to strike that balance. Such questions are not easy.
That was very helpful. I certainly hope that my proposed apologies (Scotland) bill can be progressed a little further because I think that it has huge potential in terms of the human rights of survivors of historic abuse, and other people.
I prefer to think of a balance, rather than a hierarchy, of human rights—apart, of course, from the absolute rights under ECHR that have been mentioned.
Before the meeting, we had an interesting discussion about the Regulation of Investigatory Powers (Scotland) Act 2000, which contains provisions on intrusive and covert surveillance. The committee might well be interested in pursuing what is a quite cloudy area in which individual rights of freedom of expression, freedom of movement and so on are balanced against the interests of the state. However, it is quite difficult for parliamentarians to get underneath all that to find out how that balance is operating and whether, in fact, the balance is right. I wanted to let you know that we had that discussion and that the entire committee is interested in looking at the matter—subject, of course, to the other items on our work programme.
Roderick Campbell has not asked a question yet.
Towards the end of his introductory remarks, Professor Miller mentioned monitoring international human rights recommendations. Can you add a bit of flesh to that and tell us what we as a Parliament can do to be more aware of what is going on in the international environment?
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Two years ago, a conference agreed the Belgrade principles on Parliaments and national human rights institutions, and human rights more generally. It made it clear that a Parliament has a shared responsibility in promotion and protection of human rights. That is partly about holding its Government to account for how it executes the judgments of courts, such as the European Court of Human Rights, and for how it responds to recommendations from United Nations treaty committees that are considering how treaty obligations are being implemented in countries around the world.
Parliament, in and of itself, also has a responsibility to ensure, when it considers legislation or considers introducing legislation, that the legislation is compliant with the international framework. It must also hold the Government to account for how it is implementing its obligations under international human rights law. Parliament and the national human rights institution are the natural partners in raising the standard of scrutiny of implementation of international human rights recommendations.
Later this year, under the universal periodic review—the UN looks every four years at all the treaties comprehensively—Scotland and the UK will take stock mid-term of how the recommendations are being applied. In 2016, a full report on that must be given to the UN. SNAP will be very important to Scotland’s ability to report on progress and to be held to account constructively internationally for what progress it is making and whether it is enough.
What do you foresee as being the likely outcome of the mid-term universal period review this year?
From Scotland’s point of view, there is a real opportunity to demonstrate its commitment through implementing the national action plan, which is based on the recommendations that came out of the previous universal periodic review. If Scotland seriously implements the plan, it will put itself in a very good position and will be able to hold its head up high in the UK and internationally, and to show that it is seriously engaging and has set the right direction of travel for implementing its international responsibilities.
Will there be any negatives from the review, as far as Scotland is concerned?
That will depend on what is done. The areas that will be looked at will include the age of criminal responsibility, which has attracted attention previously. More broadly, the UK—and therefore Scotland—will again be held to account for not implementing and incorporating international human rights obligations. That is a historical request that has been made of the UK, which will continue to be made until a change is made. The innovation forum—in which Scotland could look at the merits, benefits and mechanics of doing that—would be a very significant step forward and would be well received by the UN.
I will follow on from Roderick Campbell’s question. You said that we need to get better at listening to international voices and that Cadder happened because we were stone deaf to what was being said to us. What is the next Cadder? Is it justifiable assault? Have we been deaf to comments on that until now and is it something on which we need to take urgent action?
As Alan Miller said, the existence of a justifiable assault defence in relation to violence against children has historically been mentioned repeatedly by international bodies, including the committee that looks at the UN Convention on the Rights of the Child. It would be wise to pay attention to issues that recur—sometimes across a number of treaty bodies in the UN—and to start to tackle them rather than to be reactive, as happened with Cadder.
As Parliament starts to mature—Parliament is going through a reform process—what sort of mechanisms should we set up so that we can look actively at such matters? Does Parliament need to develop a formal process?
Parliament can engage more constructively with the international human rights system simply through becoming more aware of how it works and of its share of the responsibilities. That can best be done through a relationship between the national human rights institution and Parliament. You established the national human rights institution to be the bridge between the international human rights system and the domestic situation.
We will make reports—as we do—to the UN about how Scotland is or is not implementing its obligations. The UN will respond to that, listen to what the UK Government and the Scottish Government say, then make recommendations. Parliament might then charge itself with looking at those recommendations and might decide that there are learnings. If it does that and asks what Parliament’s share is of the responsibility, what we expect our Government to do, and how we can work with the national human rights institution to measure progress and set the direction of travel, everyone will have a part to play. If we accept that, it will be much less likely that cases such as Cadder will happen in the future.
That is helpful. You explained that the development of the national action plan was quite a long process and you were at pains to tell us how inclusive it was. You engaged with Police Scotland and you said that Police Scotland said that it will take steps to embed human rights further. Given its involvement and the growing awareness of human rights, does it surprise you that stop and search was being rolled out across Scotland at the same time, which has raised questions about legality and proportionality? It seems that two opposing things are happening.
Yes—and I do not think that the two are unrelated. One would expect Police Scotland to embed human rights and accountability in its culture while at the same time training its officers on how to discharge the extensive powers that we quite rightly give them—albeit with expectations that those powers will be discharged in compliance with the rights of the people whom they are policing.
Shelagh McCall and I have talked quite a bit about proportionality. That is not just a necessary tool for policy makers or lawmakers to try to reconcile competing rights; it is also a tool for police officers, who have a very difficult job. On the one hand, we want them to take away people’s rights when that is necessary, but on the other, we want them to respect human rights. I am not minimising the challenge that police officers have in protecting and promoting human rights; it is what they have to do. The greater the operational understanding of proportionality, the more one would expect that stop and search would reflect increased understanding of proportionality. Is it proportionate to stop someone in the street when there are no reasonable grounds to suspect that a crime has been committed, and to seek their consent—perhaps the person may not be in a position to give consent—for their being searched? It is one of the areas in which there is no wall between improving the police’s—and all public bodies’—operational understanding of human rights and the commitments to SNAP, and measuring what the outcomes might be.
My final question is about the action group. What level of buy-in do you have to the action group and how empowered are the people in it to go back to their local authorities or public bodies and make that best practice happen? There are a lot of groups around and a lot of talking shops. How do you make the group work as an action group, rather than a discussion group?
That is the challenge; you, we and everyone else will judge progress. SNAP is trying to be different from other traditional action plans, which are often anticlimactic.
The human rights action groups and the leadership panel will ensure that the people whom we call rights holders—the people who are most disadvantaged and marginalised—are at the table, and that they constantly bring to the attention of decision and policy makers their living experience and ask why the rights that they know that they have are not being respected and fulfilled. Let us act together to ensure that we all understand how that can best be done. We are the test of effectiveness.
Instead of having a process that separates those who make laws and policies from people out in the communities, those people are being brought into the process of constructive accountability and independent monitoring. A measure of SNAP’s success so far is the fact that we have been able to agree an action plan on historic child abuse through that process. We want SNAP to write that large.
The convener mentioned the Regulation of Investigatory Powers (Scotland) Act 2000. There is to be a Scottish Government consultation on the revised codes of practice under RIPSA. My question is twofold. Will you be responding to the consultation? Before the meeting, we had a private briefing in which we learned some interesting facts. For example, we heard about the term “collateral intrusion”. Is there such a thing as community rights? I hope that, as the convener said, the topic is one on which we can follow through, because it involves a range of issues. It will be challenging for us to pick up on all the agencies—particularly the UK agencies that deal with reserved matters—that might be using or abusing the powers. Will you comment on community rights, if there is such a thing?
On the first question, we are aware of the consultation and the draft codes of practice that have been circulated. We will submit a response in due course but—as John Finnie and the convener have identified—we are talking about a highly complex area of interrelated rights and responsibilities.
The phrase “collateral intrusion” is familiar to people who operate in the RIPSA system and to those who encounter it. I am not sure that thinking about the issue from the point of view of community rights is the only way to contemplate it, because collateral intrusion refers to people who are caught in surveillance but who are not the target of it. All those people have individual rights to privacy and so on. Although one might think generically of the community—that is an interesting way to think about the issue—underlying the community is a group of individuals with individual rights that must be respected. That is another way of looking at the matter.
Thank you very much.
We have concluded our questions. Thank you very much for your evidence.
We will break until 11.50, when we will move to the next item.
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