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Challenges to the British perspective on human rights in the devolved nations

Developing a human rights culture in Scotland: the potential to move the agenda forward within the devolution framework?

La mise en place d’une culture des droits humains en Écosse : l’occasion de faire avancer les réformes dans ce domaine dans le cadre institutionnel de la dévolution ?
Annie Thiec

Résumés

Le Human Rights Act 1998 (HRA) a incorporé dans le droit britannique les libertés et droits fondamentaux garantis par la Convention européenne des droits de l’homme (CEDH), tout en préservant le principe de souveraineté du parlement britannique. En Écosse, cependant, en vertu du Scotland Act 1998 (SA), le parlement et le gouvernement écossais ne peuvent adopter une loi ou mettre en oeuvre une politique qui n’est pas compatible avec les droits garantis par la CEDH. La nécessité de conformité avec la CEDH fait donc partie intégrante du cadre institutionnel mis en place par le SA, et à cet égard, la Commission écossaise des droits humains, mise en place en 2008, a joué un rôle crucial dans le développement d’une culture des droits humains au sein du gouvernement et du parlement écossais. Dans le contexte du débat sur les propositions de charte britannique des droits humains, le gouvernement écossais a exprimé clairement son opposition à l’abrogation du HRA, mettant en avant la complexité du régime de protection des droits humains en vigueur en Écosse, où les droits garantis par la Convention ont été traduits dans le droit écossais conformément aux dispositions contenues dans le SA et dans le HRA.
Cet article suggère que les incertitudes, depuis le début des années 2010, concernant une possible réforme du HRA, voire son remplacement par une charte britannique des droits humains, ont renforcé la détermination du gouvernement écossais de mettre en oeuvre, dans le cadre institutionnel de la dévolution, un programme politique distinct en matière de protection des droits humains. Il a pour objectif par ailleurs de déterminer dans quelle mesure le gouvernement et le parlement écossais ont concrétisé leur ambition de montrer l’exemple en matière de protection des droits humains au Royaume-Uni.

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Introduction

  • 1 Home Office, Rights Brought Home: The Human Rights Bill, CM3782, The Stationery Office, Oct (...)

1The Human Rights Act 1998, which was enacted by the British Parliament under the Labour government of Tony Blair, and came into force on 2 October 2000, did not create new rights; rather, it incorporated the fundamental rights and freedoms set out in the European Convention on Human Rights (ECHR) into domestic law across the UK. While its intention in introducing the Human Rights Bill was to make Convention rights enforceable in British courts, notably by making it unlawful for public authorities to take action which was incompatible with the ECHR, the government decided against giving British judges the power to set aside an Act of Parliament on the ground of incompatibility with Convention rights. Under the Human Rights Act, British judges could point to incompatibilities between a law enacted by the British Parliament and the ECHR but could not declare the law invalid. The sovereignty of the British Parliament therefore remained complete.1

  • 2 Section 29(2)(d) of the Scotland Act 1998 provides that an Act of the Scottish Parliament i (...)

2In the case of Scotland, however, under the devolution settlement put in place by the same Labour government, Convention rights have been protected by two statutes enacted by the British Parliament, namely the Human Rights Act 1998 (HRA), and the Scotland Act 1998 (SA) which provides that the Convention has an equivalent status to EU law in relation to Acts of the Scottish Parliament and actions of the Scottish government.2 Consequently, if a law enacted by the Scottish Parliament or a policy implemented by the Scottish government are in breach of Convention rights, they can be overturned by the courts.

  • 3 Scottish Human Rights Commission, Submission: UK Government Consultation to reform the Huma (...)

3Compliance with the ECHR was therefore embedded in the devolved institutional framework from the outset, and over more than 20 years of devolution, a human rights culture has developed within the devolved institutions in Scotland. In this regard, all the committees of the Scottish Parliament have been responsible for promoting and protecting the human rights that fall within their remit. The emergence of a human rights culture was indeed well captured in the submission made by the Scottish Human Rights Commission in March 2022 to the consultation launched by Boris Johnson’s government on its plans to reform the HRA and its proposals for a “Modern Bill of Rights”: “Convention rights have become part of the fabric of Scotland’s law, judicial analysis and crucially the legislative competence of the Scottish Parliament and Scottish government”.3

  • 4 Conservative Party, Invitation to Join the Government of Britain, 2010, 79.
  • 5 The Liberal Democrat manifesto for the general election of 2010 contained the commitment to (...)
  • 6 Conservative Party Conference, Birmingham, 1 October 2014.
  • 7 Conservative Party, Strong Leadership, A Clear Economic Plan, A Brighter, More Secu (...)
  • 8 Conservative Party, Get Brexit Done – Unleash Britain’s Potential, 2019, 48.

4The Conservative Party was critical of the HRA from the outset, for unduly protecting the rights of minorities such as suspected terrorists and asylum seekers, but also the rights of prisoners on the controversial issue of the right to vote. The plan to repeal the HRA and replace it with a British Bill of Rights became party policy and a manifesto commitment in the run-up to the 2010 general election.4 Unable, however, to deliver on his party’s commitment while he was in government in coalition with the Liberal Democrats,5 David Cameron renewed his pledge to “scrap” the Human Rights Act at his party’s annual conference of 2014,6 and the plan to replace the HRA with a British Bill fo Rights was confirmed in the 2015 general election manifesto.7 While this commitment was soon overshadowed by the prospect of the EU referendum, and thereafter postponed until after the Brexit process was completed, it was confirmed again in the 2019 general election manifesto which contained the pledge to “update the HRA”.8

  • 9 Scottish National Party, Elect a Local Champion, Manifesto 2010, 16.

5Meanwhile, in its manifesto for the general election of 2010, the Scottish National Party (SNP), in government in Edinburgh since May 2007, pledged to “oppose plans to repeal the Human Rights Act”,9 a commitment which was renewed ahead of the 2015 general election. After the Conservative Party’s victory in 2015 with an overall majority at Westminster, the Scottish government reiterated its determination to oppose the repeal of the HRA, and in doing so, it was able to build on a consensus across political parties that human rights protection in Scotland is rightly guaranteed by the HRA and the SA. In fact, the SNP government of Nicola Sturgeon went beyond committing itself to maintaining the status quo on human rights protection, as it made clear its ambition to set an example, and indeed take the lead on human rights protection at the UK level, and even internationally.

6This article will seek to examine to what extent the rise in Euroscepticism in British politics can be seen to have strengthened the determination of the Scottish government to set a differential agenda on human rights legislation in the aftermath of the 2015 general election. It will first look into the Scottish government’s contribution to the debate at the UK level on proposals for a British Bill of Rights since the second half of the 2000s. It will then investigate the institutional framework on human rights in post-devolution Scotland, before trying to assess to what extent human rights have been part of the fabric of the devolved institutions and at the core of the Scottish government’s programme. Finally, it will examine the specific case of the reform of the franchise for the Scottish Parliament and local government elections enacted by the Scottish Parliament in 2020, which extended the right to vote in Scottish Parliament and local government elections to “qualified foreign nationals”.

The Scottish government’s contribution to the debate on proposals for a British Bill of Rights at the UK level

  • 10 The Centre for Policy Studies is the think-tank founded in 1974 by Keith Joseph and (...)
  • 11 David Cameron, Balancing Freedom and Security : A Modern British Bill of Rights, Speech to (...)
  • 12 Ibid.

7It was in a speech delivered at the Centre for Policy Studies10 on 26 June 2006, barely six months after he was elected to the leadership of the Conservative Party, that David Cameron set out his proposal for “a modern British Bill of Rights” aimed at protecting individual rights and liberties, while safeguarding national security, by balancing rights and responsibilities. Arguing the case for a new approach to address the challenge for the government of protecting its citizens – in particular from international terrorism – while at the same time protecting civil liberties, David Cameron’s assessment of the impact of the HRA was that it had “helped to create a culture of rights without responsibilities”.11 The Conservative leader, whose party was in opposition at Westminster, argued that what was needed was “balancing the rights of terror suspects against the rights of British citizens.” He did not then advocate the repeal of the HRA; nor did he suggest that the UK should withdraw from the ECHR. Instead, he recommended adopting a modern British Bill of Rights which would “protect the fundamental rights set out in the ECHR in clearer and more precise terms”.12

  • 13 A group of nine Afghan nationals arrived in the UK in February 2000 after they had hijacked (...)
  • 14 House of Commons, Public Accounts Committee, Returning Failed Asylum Applicants, Th (...)
  • 15 For a discussion of the potential for conflict brought about by the HRA between the governm (...)
  • 16 Department for Constitutional Affairs, Review of the Implementation of the HRA, July 2006, (...)

8The Leader of the Opposition was not alone in arguing for a reform of the UK’s human rights legislation, however. In the wake of the High Court ruling in the Afghan hijackers case13 on 10 May 2006, and in the midst of a public controversy over failures in the government’s policy of returning failed asylum applicants to their countries of origin,14 the then Prime Minister Tony Blair ordered a review of the impact of the HRA from both the Home Office and the Department of Constitutional Affairs (DCA). The mandatory order issued by the High Court which required the Home Secretary to grant the nine Afghan nationals discretionary leave to remain in the UK for a renewable period of six months, was considered by the government as unacceptable, and by the detractors of the HRA as confirmation that the human rights regime put in place by Labour prevented the government from ensuring public safety.15 The DCA concluded in its review that the HRA had not hindered the government’s ability to protect British citizens against crime. However, while ruling out withdrawing from the ECHR or repealing the HRA, it did not exclude the possibility of amending the HRA in future.16

  • 17 United Kingdom Government, The Governance of Britain, Cm 7170, July 2007, para. 210.
  • 18 Liberal Democrats, For the People, By the People, Policy Paper 83, August 2007, 4.2 (...)
  • 19 Ibid., 4.2.3.

9In actual fact, over the second half of the 2000s, the three main British parties proposed British Bills of Rights of some kind. While the Conservative Party announced the setting-up of an internal Bill of Rights Commission in February 2007, the Labour Government, less than a week after Gordon Brown succeeded Tony Blair as Prime Minister, published a Green Paper entitled The Governance of Britain which was aimed at initiating a national conversation on constitutional reform. Among the proposals presented by the Labour government was the introduction of a British Bill of Rights and Duties which, far from being substituted to the HRA, would rather complement it by providing “explicit recognition that human rights come with responsibilities and must be exercised in a way that respects the human rights of others”.17 As for the Liberal Democrats, they unveiled a policy paper entitled For the People, By the People in August 2007, in which they called for the adoption of a written constitution incorporating a new Bill of Rights which would “entrench the rights presently enshrined in the European Convention in the British Constitutional Framework”.18 Under the Liberal Democrats’ proposals, therefore, the courts would not be limited to declaring a law enacted by the British Parliament as incompatible with the ECHR – a provision which they saw as a weakness of the HRA – but would be entitled to declare such law invalid.19

10Meanwhile, the British Parliament’s Joint Committee on Human Rights launched its own inquiry in May 2007, with a view to contributing to the debate about whether there should be a Bill of Rights for the UK. It is important to bear in mind that the Scottish Parliament election of May 2007 brought about a change of government in Scotland, with the SNP getting into office as a minority government in Edinburgh. In this regard, it is interesting to note that among the six formal evidence sessions held by the committee between December 2007 and May 2008, one was held in Edinburgh. Consequently, the committee heard evidence from Kenny MacAskill, Cabinet Secretary for Justice, as well as from Michael Clancy and Christine O’Neill, representing the Law Society of Scotland.

  • 20 House of Lords, House of Commons, Joint Committee on Human Rights, A Bill of Rights for the (...)
  • 21 House of Lords, House of Commons, Joint Committee on Human Rights, A Bill of Rights for the (...)
  • 22 Ibid., paras. 104 & 107.

11All three witnesses insisted on the necessity to take into consideration, in discussions on a future Bill of Rights adopted at the level of the UK, the fact that three distinctive legal systems applied in the UK in England and Wales, Scotland, and Northern Ireland, and that some rights which applied in one legal system did not apply in another, as was the case with the right to trial by jury, which applies in England and Wales, but is not a right per se in Scotland. The Scottish Justice Minister also argued that, while in the event of Scotland becoming independent, it would seem sensible that Scotland adopt a Bill of Rights, in the context of devolution, where Convention rights were embedded in the constitutional framework put in place in Scotland, the Scottish government’s position was that a British Bill of Rights was “neither necessary nor relevant”.20 The committee noted in its report, published in August 2008,21 that there was no mention of the devolution settlements in the Green Paper, and while the report concluded in favour of the UK adopting a Bill of Rights and Freedoms, it underlined, however, that the adoption of a UK Bill of Rights required a detailed dialogue between central government and the devolved administrations.22

  • 23 Ministry of Justice, Rights and Responsibilities: developing our constitutional framework, (...)
  • 24 British Labour Party, A Future Fair for All, 2010, 9:4.

12A second Green Paper unveiled by the Labour government in March 2009 under the title Rights and Responsibilities: Developing our constitutional framework did this time acknowledge that any UK-wide discussion of rights and responsibilities needed to involve the devolved legislatures and administrations, as well as the Human Rights Commissions operating in the different territories of the UK.23 Far from advocating the repeal of the HRA, the government favoured giving prominence to responsibilities which came in addition to the rights protected by the HRA. In the end, however, the Labour manifesto for the 2010 general election did contain the commitment not to “repeal or resile” from the HRA, but no mention of a Bill of Rights.24

  • 25 British Conservative Party, Invitation to Join the Government of Britain, 2010, 79.
  • 26 The Liberal-Democrat manifesto for the 2010 general election contained a pledge to (...)
  • 27 United Kingdom Government, The Coalition : our programme for government, May 2010, (...)

13By contrast, the 2010 Conservative Party manifesto promised to “replace the Human Rights Act with a UK Bill of Rights”, and linked the objective of protecting freedoms “from state encroachment” to that of encouraging “greater social responsibility”.25 Yet, as the Conservative Party won the election without an overall majority of seats in the House of Commons and formed a coalition government with the Liberal Democrats, the two parties had to agree to a compromise on that issue.26 As a result, the Coalition Agreement contained the commitment to the setting-up of a Commission on a Bill of Rights to “investigate the creation of a British Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in British law, and protects and extends British liberties”.27

  • 28 Commission on a Bill of Rights, A UK Bill of Rights? The Choice Before Us, Volume 1 (...)

14The Commission on a UK Bill of Rights, set up in March 2011, published its report in December 2012, under the title A UK Bill of Rights? The Choice Before Us. While its members all agreed on the idea of a UK Bill of Rights in principle, they failed to reach common agreement on its contents, as well as on whether it ought to be based on the ECHR. Consequently, the final report contained no unanimous conclusions. There was common agreement, however, on the fact that no UK Bill of Rights should be introduced until after the referendum on Scottish independence had been held.28 Of particular interest to us, here, are the Scottish government’s responses to the two consultations launched by the Commission, in August 2011 and July 2012. In both instances, the Scottish government’s response was made by Roseanna Cunningham, Minister for Community Safety and Legal Affairs and, as such, the lead portfolio Minister for human rights in Alex Salmond’s government.

  • 29 Scottish Government, Response to the UK Bill of Rights discussion paper -2011, 16 N (...)
  • 30 Scottish Government, Response to the UK Bill of Rights discussion paper -2011, op.c (...)
  • 31 Scottish Government, Response to the UK Bill of Rights discussion paper-2011, op.cit., 3; S (...)

15It is important to note that by the time the first consultation was launched, the fourth Scottish Parliament election held in May 2011 had been won again by the SNP, this time with an overall majority of seats in the Scottish Parliament. The central point made in both responses addressed to the Commission was that the Scottish government was of the view that there was no need for a UK Bill of Rights in Scotland because Convention rights were given effect in Scots law by virtue of both the Scotland Act 1998 and the Human Rights Act 1998, which resulted in “a more rigorous compliance regime” than under the sole HRA.29 In her submission to the first consultation, the Cabinet Minister, while reiterating the Scottish government’s concern that the ECHR must remain incorporated into domestic law, also pointed to what she described as “a negative and frequently misleading political discourse around the nature and importance of human rights, and who they are for” in the public debate at the UK level.30 Both responses, in conclusion, warned that, in the event of the HRA being repealed by the UK government, it would be “open to the Scottish Government to introduce Scotland-specific legislation to ensure that the fundamental rights of people in Scotland are properly protected in the context of devolved responsibilities”.31

  • 32 Conservative Party, Protecting Human Rights in the UK: The Conservatives’ Proposals for Cha (...)

16In the end, no progress was made on a UK Bill of Rights under the coalition government. It is worth pointing out, however, that in his speech at the Conservative Party conference, on 1 October 2014, less than a fortnight after the referendum on Scotland’s independence, David Cameron promised to introduce a Bill of Rights and Responsibilities after the 2015 general election. The Conservative Party’s plans were thereafter presented in a policy document entitled Protecting Human Rights in the UK. The party proposed to replace the HRA with a British Bill of Rights and Responsibilities which would make the British Parliament the “ultimate source of legal authority”, while adopting some of the rights contained in the ECHR and curtailing others.32

  • 33 Scottish National Party, Stronger for Scotland, 2015, 23.

17The Conservative Party manifesto for the 2015 general election did contain a pledge to repeal the HRA and to replace it with a British Bill of Rights. The SNP manifesto, meanwhile, left no doubt as to the party’s position in the debate on the future of human rights legislation at the UK level: “Given the central place of human rights in Scotland’s constitutional settlement, and their importance at the heart of our politics, we will oppose scrapping the Human Rights Act or withdrawal from the European Convention on Human Rights”.33

18Yet, although the Conservative Party won the election with an overall majority in the House of Commons this time, no legislation was announced on this issue in the first Queen’s Speech on 27 May 2015. The new Conservative government announced, instead, its intention to launch a consultation on a British Bill of Rights, which was eventually postponed until 2016. Yet, in the early months of 2016, the prospect of the EU referendum took centre stage, and the issue of the reform of human rights legislation in the UK was set aside.

  • 34 Conservative Party, Forward Together – Our Plan for a Stronger Britain and a Prosperous (...)
  • 35 Conservative Party, Get Brexit Done – Unleash Britain’s Potential, 2019, 48.

19In the aftermath of the referendum, the government’s agenda under Theresa May’s premiership was evidently dominated by the negotiations on a Brexit deal. Consequently, on the issue of the reform of the UK’s human rights regime, the Conservative manifesto for the early general election of 2017 announced that the debate on whether to repeal or replace the HRA was deferred until after the process of leaving the EU was complete, and that the party remained committed to the European Convention on Human Rights for the duration of the next parliament.34 However, after a landslide victory in the general election of December 2019, with the manifesto commitment to “update” the HRA,35 Boris Johnson announced in September 2020 that his government had plans to opt out of parts of the HRA, notably by preventing the Act from being used to stop the deportation of asylum seekers and terror suspects. For that purpose, the government established the Independent Human Rights Act Review (IHRAR) in December 2020. Its task was to examine the operation of the HRA, and investigate more specifically two areas, namely the relationship between domestic courts and the European Court of Human Rights, and the impact of the HRA on the relationship between the judiciary, the executive and the legislature.

  • 36 Ministry of Justice, Human Rights Act Reform: A Modern Bill of Rights – A consultation to r (...)

20IHRAR’s report, presented to the government in the autumn of 2021, was eventually published by the government on 14 December. On the same day, the government also unveiled its own proposals to replace the HRA with a Bill of Rights for the whole of the UK in a consultation paper entitled Human Rights Act Reform: A Modern Bill of Rights.36 IHRAR concluded that, on the whole, the HRA worked well, and consequently made recommendations which amounted to modest amendments to the law, mostly aimed at clarifying its contents. Most importantly, the report underlined that parliamentary sovereignty was not affected by the HRA. By contrast, the government’s consultation paper advocated that the HRA be replaced with a Bill of Rights. While remaining committed to the ECHR, the government was determined to give greater weight to rights it designated as “quintessentially” British, such as the right to freedom of speech and to trial by jury. Its proposals also aimed at restricting access to the courts for claims deemed to be “unmeritorious”, made by “undeserving claimants”, and facilitating the deportation of foreign national offenders and of illegal immigrants.

  • 37 Scottish Government, Human Rights Act - The UK Government’s consultation paper on “Human (...)
  • 38 Scottish Government, Response to the UK Independent Human Rights Act Review’s Call for Evid (...)
  • 39 Ibid., para. 39. The claim was corroborated by the reference to the two government (...)

21The Scottish government submitted responses to both IHRAR’s and the government’s consultation papers. In both submissions, stress was laid on the fact that Convention rights were embedded in the devolution settlement in Scotland, and that consequently any changes brought to the HRA would have “huge implications for the exercise of both legislative and executive competence by the devolved institutions”.37 While making clear its concern about changes to the human rights legislation which would have the effect of weakening or removing the human rights safeguards provided by the HRA,38 the government also added that there was a strong consensus in favour of the HRA among an overwhelming majority of members of the Scottish Parliament.39

  • 40 Scotland Act 1998, Schedule 4 para.1(2)(f).
  • 41 Chris Himsworth, Devolved Human Rights, n° 2011/22, Edinburgh School of Law Working (...)

22In each of its contributions to the successive consultations on proposals for reform of the UK’s human rights legislation since 2011, therefore, the Scottish government has made a point of underlining the complexity of the human rights regime in place in Scotland, which is the direct consequence of the position of human rights in the Scottish devolution framework. Indeed, while human rights are not explicitly reserved under the Scotland Act 1998, which implies that the Scottish Parliament can enact legislation relating to human rights issues within devolved policy areas, the Scottish Parliament, however, is specifically prohibited from amending the Human Rights Act.40 Consequently, as regards human rights, the Scotland Act 1998 established a division of competences between the British and the Scottish parliaments which has resulted in a dual institutional framework on human rights in Scotland.41

The institutional framework on human rights in Scotland post devolution – overlapping competences between British and Scottish institutions

  • 42 Scotland Act 1998, Schedule 5, para. 7(1).
  • 43 Scotland Act 1998, Schedule 5, Section L2.

23As previously said, human rights do not feature in the list of reserved matters contained in the Scotland Act 1998. Rather, human rights protection spreads across both matters which have been devolved to the Scottish Parliament, and matters which are reserved to Westminster. Thus, while criminal justice, prisons, health, and education are devolved matters, competence over constitutional matters, immigration, and treaty-making powers are reserved to the British Parliament. Besides, as regards international affairs, while the founding statute of the Scottish Parliament provides that international relations are reserved,42 Section 7(2)(a) stipulates that “observing and implementing international obligations, obligations under the Human Rights Convention and obligations under Community law” are not reserved. Likewise, while equal opportunities legislation is a reserved matter, the “encouragement (other than by prohibition or regulation) of equal opportunities, and in particular of the observance of the equal opportunity requirements” is not reserved.43 Consequently, the potential for duplication or overlapping between UK and Scottish institutions, is inherent in the devolution framework put in place under the SA.

24In actual fact, the Scottish government’s human rights obligations derive from two main sources. The first source is composed of the domestic legal framework of legislation enacted by the UK Parliament, and in particular the HRA, but also legislation on specific rights enacted by the Scottish Parliament, such as, for example, the Children and Young People (Scotland) Act 2014. The second source – the international framework – includes the Universal Declaration of Human Rights, the ECHR, as well as international treaties signed by the United Kingdom – including seven United Nations human rights treaties ratified by the UK between 1969 and 2009 – which are not enforceable in UK courts but create obligations for the UK.

  • 44 The EHRC was set up to replace three statutory equality commissions – the Commission for Ra (...)

25In Scotland, human rights protection is assessed and monitored by two human rights institutions, the Scottish Human Rights Commission (SHRC) and the Equalities and Human Rights Commission (EHRC). The former was established by the Scottish Commission for Human Rights Act 2006 – an Act of the Scottish Parliament – under the Labour-Liberal Democrats coalition Executive, and it became operational in December 2008. The latter, meanwhile, was established by the Equality Act 2006 – an Act of the British Parliament – under the Labour government of Tony Blair, and it was set up in October 2007, with a remit which extends across Britain. The SHRC is an independent public body which is accountable to the Scottish Parliament and whose chair is nominated by the Scottish Parliament, while the EHRC is accountable to the British Parliament, and its chair is appointed by the British government.44

  • 45 Equality Act 2006, Section 9(1).
  • 46 Ibid., Section 7(1).
  • 47 Ibid., Section 7(4).
  • 48 Scottish Commission for Human Rights Act 2006, Sections 2(1), 3(1) and 4(1).

26The EHRC is the UK’s equality and human rights regulator. It has jurisdiction over equality relating to race, gender, gender identity, disability, sexual orientation, religion or belief, and age. In relation to human rights, the commission is responsible for promoting understanding of the importance of human rights, encouraging good practice, promoting awareness and protection, and encouraging public authorities to comply with Convention rights.45 In relation to human rights in Scotland, the Equality Act stipulates that the commission “shall not take human rights action in relation to a matter if the Scottish Parliament has legislative competence to enable a person to take action of that kind in relation to that matter”.46 However, it does not prohibit the EHRC from undertaking human rights action in relation to devolved matters, if it obtains the consent of the SHRC.47 Meanwhile, the statutory remit of the SHRC is “to promote human rights and, in particular, to encourage best practice in relation to human rights” among public authorities in Scotland. This remit can be fulfilled by publishing information, providing advice or guidance, conducting research and providing education or training. The Scottish commission also has the power to conduct reviews and recommend changes to the law of Scotland or to policies and practices of any Scottish public authorities.48

  • 49 Equality and Human Rights Commission, Memorandum of Understanding between the Equality and (...)
  • 50 Ibid., paras.4 &5.

27A Memorandum of Understanding (MoU) between the EHRC, the Northern Ireland Human Rights Commission (NIHRC) and the SHRC was signed in May 2009, aimed at facilitating the working relationship between the three commissions. As confirmed in the MoU, the EHRC is the national equality regulator for England, Scotland and Wales, and with regard to human rights, it is the national human rights institution for England and Wales, and for Scotland, with the exception of matters falling under the remit of the SHRC.49 It is worth underlining that the MoU between the three commissions, while pointing out that they ought to try to agree, as far as possible, on common positions and avoid conflict, also makes clear that the three commissions are independent from one another, and that it is accepted that there will “occasionally be differences of position or emphasis”.50

  • 51 Equality and Human Rights Commission, Memorandum of Understanding between the Scottish (...)
  • 52 Ibid., para.4.
  • 53 Ibid., para.6.
  • 54 Ibid., para.12.

28The fact that a second Memorandum of Understanding was signed in December 2016, this time between the EHRC and the SHRC, confirms that the potential was there, from the outset, for some overlapping in the respective competences of the two commissions. Indeed, the bilateral MoU was aimed at “clarifying the respective roles and responsibilities of the Commissions, particularly in relation to the operation of the EHRC in Scotland”.51 It establishes therefore that, in relation to its general duty, the SHRC’s statutory remit allows it to “promote human rights and encourage best practice in devolved, reserved and international areas”,52 while the remit of the EHRC in relation to human rights in Scotland, concerns “human rights issues arising in reserved areas”.53 Furthermore, the EHRC commits itself to undertaking human rights activity in relation to devolved matters only with the consent of the SHRC.54 As regards equality legislation, the EHRC has specific powers in Scotland: the commission can conduct inquiries and investigations, make applications to court, including judicial reviews and interventions, and provide legal assistance to individuals.

  • 55 Scottish Human Rights Commission, Submission: UK Government Consultation to reform (...)

29With regard to potential differences of opinion between the EHRC and the SHRC, it is interesting to look into the submissions sent by each of the two commissions to the British government of Boris Johnson in response to the consultation on its proposals for a “Modern Bill of Rights”, as they reveal significant divergences in their respective assessments of the government’s plans. The SHRC’s response to the consultation saw in the government’s proposal to replace the HRA with a new Bill of Rights evidence of its intention “to water down human rights protections.” The Scottish commission denounced “a project based on false premises” and employing “a flawed consultation process”, which would “deliver primarily negative outcomes for the people and institutions of the UK”, and would, if adopted, “undermine 20 years of human rights law and policy development across the UK, making it harder for people to enforce their rights, and putting the UK in breach of its international law obligations”.55

  • 56 Equality and Human Rights Commission, Response to UK consultation on Human Rights A (...)

30By contrast, the EHRC welcomed the government’s firm commitment that the UK would remain party to the European Convention on Human Rights, which it took as evidence of the UK’s “wider commitment to and global leadership in human rights and international law”.56 The assessment of the government’s proposals by the EHRC was considerably more measured and cautious both in tone and in substance than that of the Scottish commission, as evidenced in the following extract:

  • 57 Equality and Human Rights Commission, Response to UK consultation on Human Rights Act Reform (...)

We are nonetheless concerned that some proposals in the consultation document lack evidence or are unclear in their purpose. Some may also risk undermining fundamental aspects of human rights protections, or risk reducing the ability of individuals to bring claims or access remedy when their human rights have been breached. Some of these changes, both separately and together, could have the effect of reducing human rights protections in the UK. In this document we analyse the Government’s proposals, and recommend amendments to its approach in order to continue to protect human and embed them in the UK’s political and legal culture, in line with the Government’s stated intention.57 [emphasis added]

31In fact, the dual institutional framework operating in Scotland as regards human rights protection, with two independent commissions, contains an intrinsic risk of duplication, while it can also lead to divergent positions, and consequently tensions, between the EHRC and the SHRC, as was the case on the Scottish government’s proposals to reform the gender recognition legislation for Scotland.

32The Scottish government launched a first consultation on the principle of gender recognition reform in March 2018 – gender recognition being a devolved matter – and proposed to adopt a system based on self-declaration to obtain legal gender recognition in Scotland, thereby removing the requirement for a medical diagnosis. Two years later, in March 2020, a second consultation was launched, this time on the government’s draft Gender Recognition Reform (Scotland) Bill published in December 2019. Meanwhile, in July 2018, the UK government launched a consultation on reforming the process for achieving legal gender recognition as established by the Gender Recognition Act 2004, and one option presented in the consultation paper was to put an end to the requirement of a medical diagnosis in order to obtain legal gender recognition.

  • 58 Equality and Human Rights Commission, Response of the Equality and Human Rights Commission (...)
  • 59 Equality and Human Rights Commission, Response to the Review of the Gender Recognition Act (...)

33The EHRC submitted responses to each of the three consultations, and in each case expressed its support for reform. Thus, in its submission to the UK government’s consultation in October 2018, the commission welcomed the proposed changes to “remove unnecessary barriers” faced by transgender people in order to obtain a gender recognition certificate in England and Wales.58 Similarly, in its response to the Scottish government’s first consultation, the EHCR expressed its support in principle for the proposed reform of the gender recognition legislation, arguing that the reform was needed “to secure and enhance the right to legal recognition of trans people in Scotland”,59 and highlighting the fact that the mechanism in place under the Gender Recognition Act 2004 presented barriers to trans people. Its submission to the second consultation, this time on the Scottish government’s draft Bill, reaffirmed its support for the reform proposals.

  • 60 Equality and Human Rights Commission, Letter to the Cabinet Secretary for Social Justice, H (...)

34In September 2020, the UK government published its report on its consultation exercise, and eventually announced that it had no intention to change the criteria laid in the Gender Recognition Act 2004 for legal gender recognition. Then, in January 2022, in a letter to Shona Robison, Scottish Cabinet Secretary for Social Justice, Housing and Local Government, the EHRC underlined “the increasingly expressed concerns from some lawyers, academics, data users and others about the potential implications of changing the current criteria for obtaining a Gender Recognition Certificate”,60 which ultimately led the commission to adopt the following position on the Scottish government’s reform proposals:

  • 61 Ibid.

We otherwise consider that the established legal concept of sex, together with the existing protections from gender reassignment discrimination for trans people and the ability for them to obtain legal recognition of their gender, collectively provide the correct balanced legal framework that protects everyone.61

  • 62 Scottish Human Rights Commission, Statement: Clarifying the mandates of the Scottish Human (...)

35This change of position on the part of the EHRC led the SHRC in February 2022 to publish a statement aimed at clarifying the mandates of the two human rights commissions operating in Scotland. The Scottish commission, which itself supported the Scottish government’s proposals contained in its Gender Recognition Bill, underlined the fact that the EHRC had not sought its consent prior to intervening on the issue of human rights protection in Scotland, as required under Section 9 of the Equality Act 2006, and consequently wished to distance itself from the position taken by the EHRC on the human rights implications of reforming gender recognition processes.62

The devolved institutions’ ambition to develop a human rights culture in Scotland and the role played by the SHRC

36The Scottish Human Rights Commission has been instrumental in embedding a human rights culture within both the Scottish government and the Scottish Parliament. In fact, in advocating for the incorporation of UN human rights treaties, the work of the SHRC has also contributed to an increasingly internationalist outlook on human rights on the part of the Scottish devolved institutions.

  • 63 Scottish Human Rights Commission, Strategic Plan 2008-2012, July 2009, 7. The third goal ce (...)
  • 64 Scottish Human Rights Commission, Scotland’s National Action Plan for Human Rights 2013-201 (...)

37The SHRC published its first four-year Strategic Plan in July 2009, informed by the nationwide consultation launched on the very day when the commission became operational, that is to say 10 December 2008, which marked the 60th anniversary of the Universal Declaration of Human Rights. While the first two of the four goals the SHRC set itself centred on developing “a sustainable human rights culture” and ensuring that human rights were “at the heart of law, policy and practice in Scotland”, the fourth objective was to “give Scotland a place in the international human rights arena”.63 The four-year plan presented, as the commission’s first strategic priority, a human rights research project aimed at developing a National Action Plan for Human Rights in Scotland, which would fulfil the recommendation made at the 1993 UN World Conference in Vienna for the “development of national action plans for human rights to agree steps to realise rights in practice”.64

  • 65 Ibid., 6.

38The research project led to the publication of a report in October 2012. This report formed the basis of Scotland’s first National Action Plan for Human Rights (SNAP) which was unveiled by the SHRC on 10 December 2013, and presented as a “practical roadmap for the progressive realisation by Scotland of the internationally recognised human rights first set down in the Universal Declaration of Human Rights”.65 On that occasion, Nicola Sturgeon who, at the time, was Deputy First Minister, welcomed the plan on behalf of the Scottish government, and laid stress on the government’s commitment to working in partnership with the commission in order to develop an ambitious framework on human rights in Scotland:

This government is committed to building a modern, inclusive Scotland which protects, respects and realises everyone’s human rights. The Plan is an important milestone in our journey to create a Scotland which acts as a beacon of progress internationally. We will continue to work with the Scottish Human Rights Commission to make rights a reality for all in Scotland, in keeping with the importance this government has long attached to human dignity, equality and fairness and the pursuit of social justice.66 

  • 67 Scottish Human Rights Commission, Scotland’s National Action Plan for Human Rights, (...)

39Scotland’s National Action Plan for Human Rights was developed against the backdrop of the work of the Commission on a UK Bill of Rights set up by the British government in March 2011, and of uncertainties, therefore, on the future of the UK’s human rights legislation, while in Scotland the government could rely on a consensus across political parties in favour of the HRA and of the development of a strategic plan on human rights protection.67 In this regard, it is worth noting that the motion presented by Roseanna Cunningham, Minister for Community Safety and Legal Affairs in the Scottish government, welcoming the publication of Scotland’s first National Action Plan for Human Rights (SNAP), had the support of all parties including the Conservative Party, as confirmed by Alex Johnstone, Conservative MSP for North East Scotland:

  • 68 Scottish Parliament, Official Report, 10 December 2013, col. 25461.

I as a Conservative and my Conservative group in the Parliament give our full commitment to furthering the aims and objectives of human rights legislation as implemented in Scotland. […] At decision time, we will support the Government in the publication of the document and the broad principles that lie behind it.68

40SNAP had a twofold objective: ensuring that Scotland met its international obligations at home and internationally, while responding to the political and economic context in Scotland ahead of the referendum on independence. A couple of years after the publication of SNAP, while the Conservative Party, after securing an overall majority at the 2015 general election, was given free rein at the UK level to repeal the HRA as well as to hold a referendum on the UK’s membership of the EU, Nicola Sturgeon, who succeeded Alex Salmond as First Minister in November 2014, made it clear that her government had every intention to take the lead among the devolved nations in further developing the human rights culture in Scotland. Thus, addressing civic organizations in Glasgow on 23 September 2015 at the Pearce Institute, she declared:

  • 69 Speech at the Pearce Institute, Glasgow Govan, 23 September 2015.

When the Human Rights Act was passed in 1998, the intention was that the Convention would provide a floor for human rights across the United Kingdom. That’s because it would be incorporated within the domestic law of all nations of the UK – through the Human Rights Act, and the different devolution settlements. But the Convention was always intended to be a floor not a ceiling. Devolved governments have the flexibility to go further, if we choose. And so, complying with the Convention should not be the limit of our ambitions.69

  • 70 Scottish Government, A Nation with Ambition – the Government’s programme for Scotland, 2017 (...)
  • 71 Ibid., 113.

41With the prospect of Brexit, and of Scotland being taken out of the EU against her will, the Scottish government, in its Programme for Government for 2017-2018, renewed its pledge to “oppose any attempt by the UK government to undermine the Human Rights Act 1998 or withdraw from the European Convention on Human Rights”.70 The government also announced the setting-up of an advisory group which would be given the task “to lead a participatory process to make recommendations on how Scotland can continue to lead by example in human rights, including economic, social, cultural and environmental rights”.71

  • 72 First Minister’s Advisory Group on Human Rights Leadership, Recommendations for a new human (...)
  • 73 First Minister’s Advisory Group on Human Rights Leadership, op.cit., 1.
  • 74 Ibid., 31.

42The First Minister’s Advisory Group on Human Rights Leadership was indeed set up in November 2017, and Professor Alan Miller – Chair of the SHRC from 2008 to 2016 – was appointed as the chairman of the group, whose remit included making recommendations to the First Minister on “the next steps on Scotland’s human rights journey, including finding a way forward in the context of post-Brexit uncertainty”.72 In addition, the advisory group was asked to consider if and how to incorporate rights from the United Nations treaties into Scottish law and governance. Its report was presented to the First Minister in December 2018, and in the words of its chairman, Alan Miller, the report contained recommendations “on the steps needing to be taken to demonstrate human rights leadership in and by Scotland”.73 With the prospect of the UK’s exit from the EU, the first recommendation made to the Scottish government was to “introduce legislation before the Scottish Parliament establishing a new framework of human rights designed to improve people’s daily lives”74 early in the next parliamentary session, that is after the 2021 Scottish Parliament election.

  • 75 National Taskforce for Human Rights Leadership, National Taskforce for Human Rights Leadership (...)

43In its Programme for Government for 2018-2019, the Scottish government pledged to prioritise actions that could be taken to address the potential repercussions of Brexit on human rights and equality. The government’s response to the advisory group’s report came in October 2019 with the setting-up of the National Taskforce for Human Rights Leadership, whose remit was to make “detailed proposals for a new statutory human rights framework for Scotland” based on the recommendations of the advisory group.75 The report of the National Taskforce, published in March 2021, recommended a “one-Bill approach” for the new human rights framework with a view to reaffirming the rights guaranteed by the HRA and incorporating the UN human rights treaties into Scots law.

  • 76 Scottish Government, Programme for Government – Protecting Scotland, Renewing Scotland, Sep (...)

44In the meantime, the Scottish government, in its Programme for Government for 2020-2021, had pledged to introduce legislation aimed at “fully and directly incorporating the UN Convention on the Rights of the Child, to the maximum extent possible within the Scottish Parliament’s powers, into Scots law”76 before the end of the parliamentary session. The United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill was indeed introduced in September 2020, and passed unanimously by the Scottish Parliament in March 2021. However, the Bill was immediately referred to the UK Supreme Court by the British government’s law officers, under Section 33 of the Scotland Act 1998, on the basis that it contained elements which were not within the legislative competence of the Scottish Parliament. In October 2021, the Supreme Court ruled in favour of the British government’s claim, which implied that the Bill must be reconsidered by the Scottish Parliament before it could be sent for Royal Assent. It is important to point out that while the Supreme Court confirmed that incorporating international human rights treaties was entirely within the competence of the Scottish Parliament, it ruled that some sections of the law impinged on reserved matters, such as the power to strike down provisions contained in statutes enacted by the British Parliament on the ground that they were incompatible with the United Nations Convention on the Rights of the Child (UNCRC). As a result, the Scottish government fell short of its ambition for Scotland to become the first nation of the UK to incorporate the UNCRC into its domestic law.

  • 77 Equalities and Human Rights Committee, Scottish Parliament, Getting Rights Right: Human Rig (...)
  • 78 While all parliamentary committees are responsible for promoting and protecting the (...)

45The Scottish Parliament was also proactive on the issue of human rights protection in the aftermath of the EU referendum. Thus, MSPs agreed to extend the remit of the Equal Opportunities Committee to include human rights, with effect from 28 September 2016, and to change the name of the committee to the Equalities and Human Rights Committee (EHRiC). On being given the added remit of human rights, the EHRiC launched an inquiry on human rights and the Scottish Parliament under three main themes: participation and engagement, parliamentary procedure and process, and accountability. The objective of the inquiry was to “review the Scottish Parliament’s approach to human rights to ensure it was ready to cope with any significant changes that could impact on human rights in Scotland”.77 The remit of the EHRiC explicitly covered human rights, “including Convention rights (within the meaning of section 1 of the Human Rights Act 1998) and other human rights contained in any international convention, treaty or other international instrument ratified by the United Kingdom”.78

  • 79 Commission on Parliamentary Reform, Your Parliament, Your Voice, 20 June 2017, Reco (...)

46It is worth pointing out at this stage that an independent commission on parliamentary reform was set up by the Presiding Officer on 26 October 2016. Its remit was to review the effectiveness of the parliament over the first four parliamentary sessions and its capacity to cope with additional powers, and to look at how it could improve its engagement with the people of Scotland and its work to deliver better scrutiny. In the course of its consultation process, the commission received a number of submissions, notably from the SHRC and several civic society groups, calling for the parliament to take on a stronger role in the promotion and protection of human rights; so much so that the commission recommended that the proposals made in these submissions, on the parliament’s role as a “human rights guarantor”, as called for by the SHRC, be referred to the EHRiC to inform its inquiry on human rights and the Scottish Parliament.79

  • 80 Equalities and Human Rights Committee, Scottish Parliament, Getting Rights Right: Human Rig (...)

47The EHRiC’s report on human rights and the Scottish Parliament, published in November 2018, and entitled Getting Rights Right: Human Rights and the Scottish Parliament, made 40 recommendations – some of which were expected to be acted upon immediately while most others were expected to be implemented over a timescale going from one to six years. The ambition of the EHRiC, ahead of Britain’s exit from the EU, was to help develop a stronger human rights culture in Scotland, in which the Scottish Parliament would become “an exemplar of international best practice to other parliaments”.80

48Thus, in her Foreword to the report, the SNP convener of the committee, Ruth Maguire, praised the Scottish Parliament for its engagement in contributing to the development of a human rights culture since its inception in 1999, pointing to the establishment of the Children’s and Young People’s Commissioner for Scotland in 2003, and that of the Scottish Human Rights Commission in 2008, as evidence of the parliament’s commitment to the promotion and protection of human rights. The real ambition, however, was for the Scottish Parliament to build on its potential to lead by example on human rights protection, as the following extract from the Foreword made clear:

  • 81 Equalities and Human Rights Committee, Scottish Parliament, Getting Rights Right: Human R (...)

Internationally, the role of national parliaments has been increasingly recognised in recent years as crucial for two reasons. The first is to achieve more effective implementation at national level of the international human rights obligations voluntarily undertaken by states. The second is to ensure that elected politicians are involved in implementation and thereby democratically legitimise the national measures taken to implement the international obligations. The United Nations, Council of Europe, European Union and the Commonwealth have all recently focused attention on the role of national parliaments as the ‘guarantors’ of human rights.81

49The number of inquiries carried out and reports published in the 13 years following the creation of the SHRC in 2008 is itself evidence of a human rights culture becoming gradually embedded in Scotland’s institutional framework, with a narrative centring on the ambition to lead the way in developing a human rights culture in the UK.

50While Scotland’s ambition to be the first devolved nation to incorporate a UN treaty in its domestic law was thwarted by the UK Supreme Court ruling on the UNCRC Bill, progress was made in the field of civil and political rights, however, with the reform of the franchise for Scottish Parliament as well as local government elections enacted in 2020.

The Scottish Elections (Franchise and Representation) Act 2020 – moving the agenda forward on the right to vote

  • 82 The Scotland Act 1998 contained a list of the powers reserved to Westminster. Consequently, (...)
  • 83 The Edinburgh Agreement signed on 15 October 2012 by the British and the Scottish governmen (...)
  • 84 The Scottish Elections (Reduction of Voting Age) Act 2015 was passed unanimously by (...)
  • 85 The Scotland Act 2016 contained a provision for a super-majority requirement for certain Bi (...)

51Electoral franchise is a particularly interesting case for three main reasons. First, it is an area where the Scottish devolved institutions have in the past put in place policies which set Scotland apart from the rest of the UK. Thus, under the Local Governance (Scotland) Act 2004, the Single Transferable Vote replaced the First-Past-The-Post system for local government elections in Scotland, and candidacy age was brought down to 18.82 In a similar way, the Scottish Independence Referendum (Franchise) Act 2013 made provision for extending the franchise to 16- and 17-year-olds in the referendum on independence.83 The following year, at the request of the Scottish government, Westminster issued a Section 30 Order transferring powers to the Scottish Parliament to extend the franchise to 16- and 17-year-olds in time for the 2016 Scottish Parliament Election.84 Secondly, under Section 3 of the Scotland Act 2016, full legislative competence over parliamentary and local government elections was transferred to the Scottish Parliament as from May 2017.85 Thirdly, Britain’s exit from the EU had a direct impact on EU citizens’ right to vote in local government elections and, in the case of Scotland, in elections to the Scottish Parliament. In fact, in the aftermath of the EU referendum, Nicola Sturgeon immediately expressed her concern over the rights of EU nationals living in Scotland after Brexit – 173,000 at the time of the EU referendum – and made a point of repeatedly assuring them that the Scottish government would guarantee that their rights were preserved and protected.

  • 86 Scottish Government, Delivering for Today, Investing for Tomorrow- The Government’s (...)

52The transfer of full legislative competence over elections, under the Scotland Act 2016, represented an opportunity for the Scottish government to reform the franchise for local government and Scottish Parliament elections. In this regard, while announcing its intention to introduce a Bill on electoral franchise with a view to protecting the voting rights of EU citizens, the government of Nicola Sturgeon was also willing to make a decision on the question of prisoner voting rights, as its Programme for Government for 2018-19 made clear by stipulating that a Bill was “to be brought forward after a consultation on prisoner voting has been undertaken”.86

53The Scottish government actually launched a first consultation on electoral reform on 19 December 2017, and a second consultation, on prisoner voting, a year later, on 14 December 2018. There was, on the part of the Scottish government, the willingness to move away from citizenship being the only criterion on which the franchise was based, and make residency the basis of the franchise in order to include foreign nationals who had leave to remain in the UK on the register of local government electors. The second main objective of its electoral reform was to ensure compliance of the Scottish devolved institutions with the European Convention on Human Rights in relation to prisoner voting.

  • 87 Scottish Government, Consultation on Electoral Reform, December 2017, 24.
  • 88 Equalities and Human Rights Committee, Scottish Parliament, Prisoner Voting in Scotland, 3r (...)

54The first consultation paper presented the government’s plan to extend the franchise to all the people who were legally residing in Scotland. The government underlined the fact that while the franchise in Scotland was largely based on residence – for both local government and Scottish Parliament elections – some groups of residents were excluded, notably non-EU citizens and non-Commonwealth citizens. To illustrate this point, the paper presented the example of Canadian and German citizens residing in Scotland, who could vote in local and Scottish Parliament elections, while American or Japanese citizens could not. The government proposed therefore that “anyone who has the right to reside in Scotland and who might pay taxes, who may own or rent a home and access the education, health and other public services should be entitled to vote in Scotland’s elections.” 87The second consultation, on prisoner voting, was launched after the publication by the Equalities and Human Rights Committee of its report on prisoner voting, in May 2018, which recommended that the franchise ought to be extended to all prisoners.88 In fact, the EHRiC had agreed to launch an inquiry on prisoner voting in June 2017, after considering a letter from Patrick Harvie, MSP for Glasgow for the Scottish Greens, asking that the Committee include the issue of prisoner voting in its work programme.

  • 89 In 2005, in the case of Hirst v the United Kingdom, the European Court of Human Rig (...)
  • 90 The measure came into effect in the summer of 2018.

55The political debate on prisoner voting in Scotland developed against the backdrop of the compromise on prisoner voting rights proposed by the British government in November 2017 and agreed upon by the Council of Europe, with the result that the dispute over the Hirst ruling by the European Court of Human Rights89 was settled once and for all in September 2018. The “Lidington compromise”, after the name of the Justice Secretary who presented the proposal in the Commons, did not require to revise the Representation of the People Act 1983. Instead, while confirming that convicted prisoners were disenfranchised, the government introduced administrative changes to the Prison Service guidance so as to make prisoners released on temporary day licence, on the day of an election, eligible to vote.90 The question which emerged in the political debate in Scotland, therefore, was whether Scotland should follow the UK Government’s approach or move the agenda forward by taking up a more liberal approach to prisoner voting.

  • 91 Scottish Parliament, Official Report, 27 June 2013, col. 21795-21797.

56It is worth pointing out that the issue of the prisoners’ right to vote had been raised at the time of the independence referendum, while the Scottish Independence Referendum (Franchise) Bill was being examined by the Scottish Parliament. Two amendments aimed at ending the blanket ban on prisoner’s voting were presented at Stage 3 of the Bill, one by Alison McInnes, for the Liberal Democrats, and the other by Patrick Harvie, for the Scottish Greens.91 As they did not have the support of the government, however, both amendments were rejected by the Scottish Parliament. The decision to reject the amendments was seen at the time by the two MSPs putting them forward as a missed opportunity to lead by example in extending the franchise to prisoners in the referendum on independence.

  • 92 Scottish Government, Consultation on Prisoner Voting – Analysis of Responses, June (...)

57The government’s consultation paper on prisoner voting in 2018 did not propose to maintain the UK’s ban on all serving prisoners from voting – the so-called “blanket ban” – under the Representation of the People Act 1983. Yet, the government did not propose to remove the ban completely and allow all prisoners the right to vote, arguing that it was “neither appropriate nor necessary to ensure compatibility with the ECHR.” Instead, four options were presented: the first option linked enfranchisement to the length of the sentence, the second made of the loss of the right to vote a sentence in itself to be applied by the sentencing judge, while the third option linked disenfranchisement to the type of crime committed, and the last option linked a prisoner's regaining the right to vote to the length of time remaining on their prison sentence. The government made it clear in its consultation paper that its preferred option was the first one. The government’s report on the consultation responses, published in June 2019, showed that there was no consensus on any one of the four options proposed in the consultation paper. Rather, respondents were split fairly evenly between three positions: while about a third favoured the first option, the remaining two-thirds were evenly split between those who were in favour of maintaining a blanket ban and those who supported making all prisoners eligible to vote.92

  • 93 Scottish Government, New Scots Refugee Integration Strategy 2018-2022, 10 January 2 (...)

58The Scottish Elections (Franchise and Representation) Bill was eventually introduced before Parliament on 20 June 2019. While the Bill was being debated in the Scottish Parliament, the UK officially left the EU. Consequently, the Scottish government tabled an amendment aimed at including EU nationals among the foreign nationals covered by the Bill. Under the government’s proposals, the franchise was to be extended to refugees – therefore people who had been granted asylum – though not to people seeking asylum whose application had not yet been dealt with. This provision came under criticism from the Scottish Refugee Council which argued that the franchise should include all asylum seekers, and that this came in complete contradiction with the Government’s New Scots Refugee Integration Strategy 2018-2022 which aimed to make a reality of the principle that a person’s integration started on their day of arrival.93

  • 94 It is worth underlining that at Stage 2, when the Bill was being examined by the Standards, (...)
  • 95 Scottish Parliament, Official Report, Session 5, 20 February 2020, col. 59-73. The (...)
  • 96 Mark Ruskell, who tabled the amendment in the name of the Scottish Greens, cited the exampl (...)

59In this regard, an amendment aimed at extending the franchise to asylum seekers was tabled at Stage 3 of the Bill by Scottish Green MSP Mark Ruskell.94 The proposal was not endorsed by the government, however. Michael Russell, Cabinet Secretary for Government Business and Constitutional Relations, in charge of the Bill, argued against extending the franchise to asylum seekers on the ground that the provision could be deemed to be outwith the competence of the Scottish Parliament, as it could be considered as a matter relating to immigration, with the risk of seeing the entire Bill struck down. When the vote came, the amendment was defeated, but it is interesting to note that both Labour and the Scottish Liberal Democrats voted alongside the Scottish Greens in favour of the amendment.95 The Scottish Greens also wanted to go further than the government on the question of the prisoners’ right to vote, and proposed that all prisoners serving a sentence of 4 years or less be made eligible to vote in local government and Scottish Parliament elections; their amendment was also rejected, however.96

60In the end, the Scottish Elections (Franchise and Representation) Bill was passed on 1 April 2020, by 92 votes to 27, with no abstention, and with a majority of votes which corresponded to the two-thirds threshold – that is 86 votes – required under Section 11 of the Scotland Act 2016. The Bill was supported by all parties except the Conservative Party, who opposed both the idea of the franchise being dissociated from citizenship, and the extension of the franchise to convicted prisoners.

61Consequently, under Section 1 of the Scottish Elections (Franchise and Representation) Act 2020, the franchise for Scottish elections has been extended to include all those with a legal right to live in Scotland. It does so by creating a new category of voters, designated as “qualifying foreign nationals”. A qualifying foreign national is defined as someone who does not require leave to enter or remain in the UK under the Immigration Act 1971. Any period of leave to remain entitles a person to register to vote. This means, for example, that people who have been granted refugee status and those who have been granted asylum will be able to vote, so long as they satisfy the condition of living in Scotland, as well as the conditions which apply to all electors for Scottish elections - for example being over 16 years of age. The right to stand as a candidate, however, was restricted to foreign nationals with indefinite leave to remain in the UK.

62On the issue of prisoner voting, Section 4 of the law provides that prisoners serving sentences of 12 months or less have the right to vote at both Scottish Parliament and Scottish local government elections. The Scottish government’s view as set out in the Bill’s policy memorandum was that 12 months was sensible because it was “consistent with the distinction within the Scottish criminal justice system between the sentencing powers of courts of summary jurisdiction and courts of solemn jurisdiction.”

  • 97 Indeed, under the Wales Act 2017, full legislative competence over parliamentary and local (...)

63The new law came into force in August 2020. Consequently, the Scottish Parliament election of 2021 and the local government elections of May 2022 were the first elections in which refugees and qualified foreign nationals, notably non-EU and non-Commonwealth citizens, but also EU citizens residing in Scotland, were allowed to vote. The Scottish Parliament was not the only devolved legislature in the UK to have extended the franchise to qualified foreign nationals,97 but it was alone, however, in making refugees eligible to vote in both local government and Scottish Parliament elections.

64While the turnout of 63.5% in the Scottish Parliament election of 2021 and the number of people registered to vote in that election were actually the highest ever reached since the setting-up of the Scottish Parliament in 1999, it is hard to establish in what proportion the extension of the franchise to qualified foreign nationals may have contributed to such high figures, compared to other factors such as the context of the Covid-19 recovery which led authorities to facilitate postal voting, or the perception of the election as being about the constitutional future of Scotland. As regards prisoner voting, the data available at the time of writing indicated a low level of engagement with voting among eligible prisoners.

Conclusion

  • 98 The Bill did not create new rights, but listed the Convention rights to which it gave (...)

65A Bill of Rights Bill was eventually introduced in the House of Commons on 22 June 2022, under Boris Johnsons’s premiership, by the then Justice Secretary Dominic Raab. The stated purpose of the Bill was to “[clarify and re-balance] the relationship between courts in the United Kingdom, the European Court of Human Rights and Parliament” and give primacy to decision-making by Parliament in instances where competing rights and interests were at stake.98 However, by the time the Bill was due to be debated at second reading in the Commons, there had been a change of Prime Minister, and a new Justice Secretary appointed to succeed Dominic Raab, and on 7 September, the government of Liz Truss announced its decision to shelve the plans for a new Bill of Rights. Despite the change of Prime Minister again in October of the same year, and the return of Dominic Raab as Justice Secretary in Rishi Sunak’s government, the bill was eventually abandoned in June 2023.

66Meanwhile, under the new Scottish First Minister, Humza Yousaf, who succeeded Nicola Sturgeon in March 2023, the programme for government for 2023-2024 announced the introduction of a Human Rights Bill, thereby following the recommendations of the SHRC which called for a one-Bill approach to human rights legislation. Besides, the government pledged to bring back the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill before Parliament for Reconsideration Stage.

  • 99 Scottish Human Rights Commission, State of the Nation: Civil and Political Rights i (...)

67The UNCRC Bill was unanimously adopted at Holyrood in December 2023, and received Royal Assent in January 2024, which was welcomed by the Scottish Human Rights Commission in its first “state of the nation” report as “a pivotal moment in Scotland’s human rights journey”.99 However, the commission expressed concern over the government’s decision, under the leadership of John Swinney, who became First Minister in May 2024 after Humza Yousaf’s resignation, to postpone proposals for a Human Rights Bill until after the 2026 Scottish Parliament elections.

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Notes

1 Home Office, Rights Brought Home: The Human Rights Bill, CM3782, The Stationery Office, October 1997, 2.13. For an in-depth discussion of the challenge which the HRA embodied of reconciling the idea of a bill of rights with the doctrine of parliamentary sovereignty, see Vernon Bogdanor, The New British Constitution, Oxford and Portland: Hart Publishing, 2009, 58-62.

2 Section 29(2)(d) of the Scotland Act 1998 provides that an Act of the Scottish Parliament is outside the competence of the Parliament if it is incompatible with any of the Convention rights or with Community law, while Section 57(2) states that “a member of the Scottish Executive has no power to make any subordinate legislation or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights or with Community law”.

3 Scottish Human Rights Commission, Submission: UK Government Consultation to reform the Human Rights Act 1998, proposals for “A Modern Bill of Rights”, March 2022, 12.

4 Conservative Party, Invitation to Join the Government of Britain, 2010, 79.

5 The Liberal Democrat manifesto for the general election of 2010 contained the commitment to “ensure that everyone has the same protections under the law by protecting the Human Rights Act”. Change that Works for You, 94.

6 Conservative Party Conference, Birmingham, 1 October 2014.

7 Conservative Party, Strong Leadership, A Clear Economic Plan, A Brighter, More Secure Future, 2015, 58 & 60.

8 Conservative Party, Get Brexit Done – Unleash Britain’s Potential, 2019, 48.

9 Scottish National Party, Elect a Local Champion, Manifesto 2010, 16.

10 The Centre for Policy Studies is the think-tank founded in 1974 by Keith Joseph and Margaret Thatcher.

11 David Cameron, Balancing Freedom and Security : A Modern British Bill of Rights, Speech to the Centre for Policy Studies, 26 June 2006.

12 Ibid.

13 A group of nine Afghan nationals arrived in the UK in February 2000 after they had hijacked a plane on an internal flight in Afghanistan in order to flee from the Taliban regime. They were convicted in December 2001, but their conviction was quashed in 2003 by the Court of Appeal which found that they had been acting under duress. In June 2004, a panel of Immigration Adjudicators upheld the Afghans nationals’ claim for humanitarian protection under Article 3 of the ECHR. At the time, the Home Secretary applied to the Immigration Appeal Tribunal for permission to appeal against the adjudicators’ decision, but permission was refused on the ground that the decision of the adjudicators was based on factual findings. The Home Secretary could then have appealed to the High Court for a judicial review of the decision by the Immigration Appeal Tribunal to refuse the appeal, but chose not to. Instead, the nine Afghan hijackers were granted temporary admission to the UK in November 2005. The High Court ruling in 2006 did not entitle them to full refugee status, but allowed them to work in the UK.

14 House of Commons, Public Accounts Committee, Returning Failed Asylum Applicants, Thirty-Fourth Report of Session 2005-2006, HC 620, 14 March 2006.

15 For a discussion of the potential for conflict brought about by the HRA between the government and the judiciary in matters concerning the government’s asylum and counter-terrorism policies, see BOGDANOR, Vernon, The New British Constitution, op.cit., 68-73.

16 Department for Constitutional Affairs, Review of the Implementation of the HRA, July 2006, 37-39. The Home Office review, meanwhile, was not published. Instead, two papers were published, both in July 2006, the first entitled Rebalancing the Criminal Justice System in Favour of the Law-Abiding Majority, and the second entitled Fair, effective, transparent and trusted – Rebuilding confidence in our immigration system.

17 United Kingdom Government, The Governance of Britain, Cm 7170, July 2007, para. 210.

18 Liberal Democrats, For the People, By the People, Policy Paper 83, August 2007, 4.2.4.

19 Ibid., 4.2.3.

20 House of Lords, House of Commons, Joint Committee on Human Rights, A Bill of Rights for the UK?, Twenty-ninth Report of Session 2007-2008, Volume II Oral and Written Evidence, HL Paper 161-II, HC 150-II, 10 August 2008, EV 59.

21 House of Lords, House of Commons, Joint Committee on Human Rights, A Bill of Rights for the UK?, Twenty-ninth Report of Session 2007-2008, HL Paper 161-I, HC 150-I, 10 August 2008, para.100.

22 Ibid., paras. 104 & 107.

23 Ministry of Justice, Rights and Responsibilities: developing our constitutional framework, Cm 7577, March 2009, 4.32-4.42.

24 British Labour Party, A Future Fair for All, 2010, 9:4.

25 British Conservative Party, Invitation to Join the Government of Britain, 2010, 79.

26 The Liberal-Democrat manifesto for the 2010 general election contained a pledge to ensure the same protections under the law for everyone by protecting the HRA.

27 United Kingdom Government, The Coalition : our programme for government, May 2010, 11.

28 Commission on a Bill of Rights, A UK Bill of Rights? The Choice Before Us, Volume 1, December 2012, para.74.

29 Scottish Government, Response to the UK Bill of Rights discussion paper -2011, 16 November 2011. 1; Scottish Government, Response to second consultation on a UK Bill of Rights -2012, 27 September 2012, 2.

30 Scottish Government, Response to the UK Bill of Rights discussion paper -2011, op.cit., 2.

31 Scottish Government, Response to the UK Bill of Rights discussion paper-2011, op.cit., 3; Scottish Government, Response to second consultation on a UK Bill of Rights-2012, op.cit., 5.

32 Conservative Party, Protecting Human Rights in the UK: The Conservatives’ Proposals for Changing Britain’s Human Rights Laws, October 2014.

33 Scottish National Party, Stronger for Scotland, 2015, 23.

34 Conservative Party, Forward Together – Our Plan for a Stronger Britain and a Prosperous Future, 2017, 37. Yet, as Home Secretary in David Cameron’s Coalition government, Theresa May’s ambition had initially been to withdraw from the ECHR, which she argued was more vital and beneficial to the UK than leaving the EU.

35 Conservative Party, Get Brexit Done – Unleash Britain’s Potential, 2019, 48.

36 Ministry of Justice, Human Rights Act Reform: A Modern Bill of Rights – A consultation to reform the Human Rights Act, CP 588, December 2021.

37 Scottish Government, Human Rights Act - The UK Government’s consultation paper on “Human Rights Act Reform: A Modern Bill Of Rights” – Response by the Scottish Government, 8 March 2022, para.3.

38 Scottish Government, Response to the UK Independent Human Rights Act Review’s Call for Evidence, March 2021, para. 117.

39 Ibid., para. 39. The claim was corroborated by the reference to the two government motions presented at Holyrood in November 2014 (S4M-11484) and January 2017 (S5M-03297) and adopted with the votes of four of the five parties represented in the Scottish Parliament, the Conservative Party being the only party to vote against the motions. The first motion renewed the Parliament’s support fo the HRA which provided effective implementation of the ECHR into Scots law, while the second called on the UK government not to take action which would weaken or undermine participation in international human rights mechanisms such as the ECHR, and committed the Parliament to acting “to the full extent of its powers to ensure that the rights and interests of all of the people of Scotland are safeguarded and protected.” For the minutes of the debates on the two motions, see Scottish Parliament, Official Report, 11 November 2014, col. 22-68, and Scottish Parliament, Official Report, 10 January 2017, col. 10-67.

40 Scotland Act 1998, Schedule 4 para.1(2)(f).

41 Chris Himsworth, Devolved Human Rights, n° 2011/22, Edinburgh School of Law Working Paper Series, 2011, 7-8.

42 Scotland Act 1998, Schedule 5, para. 7(1).

43 Scotland Act 1998, Schedule 5, Section L2.

44 The EHRC was set up to replace three statutory equality commissions – the Commission for Racial Equality, the Equal Opportunities Commission and the Disability Rights Commission. Both the EHRC and the SHRC are National Human Rights Institutions (NHRI) within the United Nations system. Consequently, they can report directly to the United Nations on human rights issues, and make direct contributions to the UN Human Rights Council.

45 Equality Act 2006, Section 9(1).

46 Ibid., Section 7(1).

47 Ibid., Section 7(4).

48 Scottish Commission for Human Rights Act 2006, Sections 2(1), 3(1) and 4(1).

49 Equality and Human Rights Commission, Memorandum of Understanding between the Equality and Human Rights Commission, the Northern Ireland Human Rights Commission and the Scottish Human Rights Commission, 5 April 2010, para.1.

50 Ibid., paras.4 &5.

51 Equality and Human Rights Commission, Memorandum of Understanding between the Scottish Human Rights Commission and the Equality and Human Rights Commission, 1 December 2016, para.1.

52 Ibid., para.4.

53 Ibid., para.6.

54 Ibid., para.12.

55 Scottish Human Rights Commission, Submission: UK Government Consultation to reform the Human Rights Act 1998, proposals for “A Modern Bill of Rights”, 9 March 2022, paras.1-3.

56 Equality and Human Rights Commission, Response to UK consultation on Human Rights Act Reform - a Modern Bill of Rights, 8 March 2022, 3.

57 Equality and Human Rights Commission, Response to UK consultation on Human Rights Act Reform - a Modern Bill of Rights, op.cit., 4.

58 Equality and Human Rights Commission, Response of the Equality and Human Rights Commission to the Consultation, 18 October 2018, para.4.

59 Equality and Human Rights Commission, Response to the Review of the Gender Recognition Act 2004 Consultation, 1 March 2018, Question 1.

60 Equality and Human Rights Commission, Letter to the Cabinet Secretary for Social Justice, Housing and Local Government, 26 January 2022.

61 Ibid.

62 Scottish Human Rights Commission, Statement: Clarifying the mandates of the Scottish Human Rights Commission and the Equality and Human Rights Commission in Scotland, 24 February 2022.

63 Scottish Human Rights Commission, Strategic Plan 2008-2012, July 2009, 7. The third goal centred on good practice as the SHRC pledged to adopt a human rights-based approach to its own work.

64 Scottish Human Rights Commission, Scotland’s National Action Plan for Human Rights 2013-2017, 2013, 17.

65 Ibid., 6.

66 Quoted on the SHRC website, at <https://www.scottishhumanrights.com/news/launch-of-scotlands-national-action-plan-for-human-rights/>, accessed on 1 October 2022.

67 Scottish Human Rights Commission, Scotland’s National Action Plan for Human Rights, op.cit, 10 & 19.

68 Scottish Parliament, Official Report, 10 December 2013, col. 25461.

69 Speech at the Pearce Institute, Glasgow Govan, 23 September 2015.

70 Scottish Government, A Nation with Ambition – the Government’s programme for Scotland, 2017-18, September 2017, 21.

71 Ibid., 113.

72 First Minister’s Advisory Group on Human Rights Leadership, Recommendations for a new human rights framework to improve people’s lives, December 2018, 4.

73 First Minister’s Advisory Group on Human Rights Leadership, op.cit., 1.

74 Ibid., 31.

75 National Taskforce for Human Rights Leadership, National Taskforce for Human Rights Leadership Report, March 2021, 17.

76 Scottish Government, Programme for Government – Protecting Scotland, Renewing Scotland, September 2020, 14.

77 Equalities and Human Rights Committee, Scottish Parliament, Getting Rights Right: Human Rights and the Scottish Parliament, 6th Report 2018, SP Paper 431, 28 November 2018, 8.

78 While all parliamentary committees are responsible for promoting and protecting the human rights that fall within their remit, the fact of adding human rights explicitly to the remit of a single committee was a clear indication on the part of the Scottish Parliament of its willingness to become a “human rights guarantor”.

79 Commission on Parliamentary Reform, Your Parliament, Your Voice, 20 June 2017, Recommendation 30.

80 Equalities and Human Rights Committee, Scottish Parliament, Getting Rights Right: Human Rights and the Scottish Parliament, op.cit., 2.

81 Equalities and Human Rights Committee, Scottish Parliament, Getting Rights Right: Human Rights and the Scottish Parliament, op.cit., 1-2.

82 The Scotland Act 1998 contained a list of the powers reserved to Westminster. Consequently, anything which did not feature in the list was devolved. Regarding local elections, the only aspect which was reserved to Westminster was the franchise. There was therefore no need for a Section 30 Order from Westminster for the Scottish government to introduce legislation to change the electoral system.

83 The Edinburgh Agreement signed on 15 October 2012 by the British and the Scottish governments included a draft Section 30 Order devolving to the Scottish Parliament the competence to legislate for a referendum on whether Scotland should become independent from the rest of the United Kingdom, and a Memorandum of Agreement. While the Memorandum of Agreement established that both governments “agreed that anyone entitled to vote in the Scottish Parliament and local government elections in Scotland would be able to vote in the referendum”, it also acknowledged that the final decision on the question of extending the franchise to include 16- and 17- year-olds belonged to the Scottish government.

84 The Scottish Elections (Reduction of Voting Age) Act 2015 was passed unanimously by the Scottish Parliament.

85 The Scotland Act 2016 contained a provision for a super-majority requirement for certain Bills deemed to deal with “protected subject-matters”, including elections. Consequently, any Bill aimed at introducing electoral reform required to be passed by a super-majority of 2/3s of the 129 MSPs, i.e. 86 MSPs.

86 Scottish Government, Delivering for Today, Investing for Tomorrow- The Government’s Programme for Scotland 2018-19, September 2018, 28.

87 Scottish Government, Consultation on Electoral Reform, December 2017, 24.

88 Equalities and Human Rights Committee, Scottish Parliament, Prisoner Voting in Scotland, 3rd Report 2018, SP Paper 315, 14 May 2018.

89 In 2005, in the case of Hirst v the United Kingdom, the European Court of Human Rights ruled that the UK’s blanket ban on prisoner voting rights was in breach of Article 3 of Protocol 1 of the ECHR.

90 The measure came into effect in the summer of 2018.

91 Scottish Parliament, Official Report, 27 June 2013, col. 21795-21797.

92 Scottish Government, Consultation on Prisoner Voting – Analysis of Responses, June 2019.

93 Scottish Government, New Scots Refugee Integration Strategy 2018-2022, 10 January 2018, 11.

94 It is worth underlining that at Stage 2, when the Bill was being examined by the Standards, Procedures and Public Appointments Committee, Mark Ruskell, Deputy Convener of the committee, had lodged a similar amendment which was voted down by the committee by 5 votes to 2.

95 Scottish Parliament, Official Report, Session 5, 20 February 2020, col. 59-73. The amendment was rejected by 87 votes to 32.

96 Mark Ruskell, who tabled the amendment in the name of the Scottish Greens, cited the example of the Welsh Parliament which in their discussion on prisoner voting had drawn the line at sentences of 4 years or less, on the basis that it marked a clear distinction between short-term sentences and sentences of over 4 years for serious offences such as rape, attempted rape, homicide, etc..

97 Indeed, under the Wales Act 2017, full legislative competence over parliamentary and local government elections was also transferred to the Welsh Parliament, and the Welsh government introduced legislation on electoral reform. Consequently, the Senedd and Elections (Wales) Act 2020 and the Local Government and Elections (Wales) Act 2021 brought voting age down to 16, and also extended the franchise to qualified foreign nationals for local government and Welsh Parliament elections. The provisions came into force for the Senedd election of 2021 and the local elections of 2022.

98 The Bill did not create new rights, but listed the Convention rights to which it gave effect.

99 Scottish Human Rights Commission, State of the Nation: Civil and Political Rights in Scotland, 2024, Foreword from the Chair of the Commission.

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Annie Thiec, « Developing a human rights culture in Scotland: the potential to move the agenda forward within the devolution framework? »Revue LISA/LISA e-journal [En ligne], vol.23-n°60 | 2025, mis en ligne le 01 décembre 2025, consulté le 16 décembre 2025. URL : http://journals.openedition.org/lisa/17802 ; DOI : https://doi.org/10.4000/157i3

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Annie Thiec



Annie Thiec is associate professor in British and Scottish politics at Nantes Université, France. Her research interests include nationalism, identity politics, elections and political parties in Scotland, party politics in multi-level systems, intergovernmental relations in the United Kingdom, and Scotland and the European Union.

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