As the United Nations prepares for its periodic scrutiny of the UK's human rights record, the Law Society of Scotland has contributed its own review towards an independent submission

If you could tell the Government one thing about human rights, what would it be? The question appears simple enough. The answer, needless to say, is more complex.

Every United Nations member state takes part in the four-and-a-half year cycle of the Universal Periodic Review (UPR), as part of an ongoing drive to improve human rights around the world. The UPR is an opportunity to scrutinise countries’ progress, examine issues arising across the full range of UN human rights agreements and make recommendations for improvement.

The British Institute of Human Rights (BIHR) is preparing a civil society shadow report to the UPR, which will provide an important perspective for the UN to consider alongside the UK Government’s report.

The Law Society of Scotland submitted written evidence to the BIHR, summarising some of the key human rights issues that have been picked up by our policy team and committees in relation to Scotland and the wider UK.

In short, both the Scottish and UK Governments must advance and enhance the protection of human rights for everyone. Our Governments must also consider the constitutional implications of law reform proposals, in particular the relationship of the UK and devolved nations. And given that effective access to justice is a critical element of the rule of law and a properly functioning justice system, care must be taken to ensure that access to justice, on a fair and affordable basis, is a reality for all those who need it.

Consideration of the question in more detail shows that human rights lie at the heart of a number of diverse issues in Scotland – from land reform to legal aid.

Access to justice: multi-faceted

The closure of 10 sheriff courts and seven justice of the peace courts as part of a programme of modernisation and rationalisation of the court estate raised a number of human rights questions, particularly over access to justice. For instance, increased upfront travel costs are more likely to impact on those who can least afford access to justice. We are continuing our analysis of the effect of the closures and are working to identify improvements that could be made to the operation of local courts and access to justice.

The steady decline in the legal aid budget – the £126.1 million budget for 2016-17 is the lowest for well over a decade – is another crucial issue for access to justice in Scotland. We do not see how proposed legal aid targets can be achieved without seriously damaging both access to justice and the justice system. We continue to work with the Scottish Government and Scottish Legal Aid Board to discuss and address the sustainability of the legal assistance system, but believe a fundamental issue of underfunding remains.

In terms of children’s rights, the Children and Young People (Scotland) Act 2014 imposed diluted duties on Scottish ministers to consider the United Nations Convention on the Rights of the Child when designing and delivering policies and services. The Act also introduced the role of the “named person”, which has generated considerable controversy over the right to private and family life. The minimum age of criminal responsibility, at eight, is one of the lowest in the world, which continues to give cause for concern, although the Society is pleased to see the Scottish Government progressing with plans to increase this to 12. The ability of child applicants to access legal aid in civil matters raises important issues of principle.

Barriers to compliance

During the passage of the Land Reform (Scotland) Act 2016 through the Scottish Parliament, concerns were raised about its compatibility with various human rights obligations of the UK, though changes were made before it was passed. In particular, the Society welcomed the decision not to extend the Tenant Farming Commissioner’s powers, as had been proposed.

Following a comprehensive review by the Mental Health & Disability Law Committee of the legislation and human rights standards intended to protect vulnerable people, the Society proposed major changes to the law for adults with incapacity. As a matter of urgency, Scotland must improve the efficiency and effectiveness of the operation of the combined jurisdictions covering such adults, currently fragmented across courts and tribunals, in relation to adults with incapacity, adults in need of compulsory mental health care and treatment, and adults who are vulnerable and at risk. The current position under the Adults with Incapacity (Scotland) Act 2000 is inefficient, and the fragmented system wastes public resources and frequently – and seriously – lets down vulnerable people, their families and carers. We believe that the jurisdictions should be consolidated within a single tribunal, based on the good practices of the Mental Health Tribunal for Scotland.

We also believe that the introduction of significant tribunal fees has created a barrier to access to justice. In particular, the introduction of employment tribunal fees in 2013, and the recent moves towards full cost recovery in the immigration and asylum tribunals system, should be reconsidered. The Scottish Government has committed to abolishing employment tribunal fees when the power is devolved, and we would encourage the Government to do this as soon as possible.

The essential Human Rights Act

Finally, no review of current human rights issues would be complete without reference to the UK Government plans to repeal the Human Rights Act 1988 (HRA) and replace it with a UK Bill of Rights.

The HRA is a key component of our society and a valuable tool for the protection of our rights through the domestic courts in the UK. It provides an effective means for individuals to challenge the actions of the state and seek redress in a more accessible, timely and affordable way than was possible before incorporation of the European Convention on Human Rights into domestic law. The HRA has had a positive impact on the development of law and policy both in the UK and in Scotland, and the Society supports its retention. There is however room for improvement. For example, providing greater parliamentary accountability and a stronger judicial role could build on and enhance the protections we currently have.

So, considering all of the different ways that human rights impacts on the many different aspects of our lives, what is the one thing the Government needs to hear?


The Author
Marina Sinclair-Chin, head of International, Law Society of Scotland  
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