MBM submission on the Human Rights Bill for Scotland

We recently submitted a response to the Scottish Government consultation on ‘A Human Rights Bill for Scotland’, which closed on 5 October. Our submission is shown below.

The Ministerial foreword [to the consultation] states that “Scotland has a strong human rights culture”. We would urge more humility, given the reality of experiences for too many people in Scotland. We would highlight here as examples: 

Realising rights

Rights on paper are worthless unless those rights can be enforced or realised in practice. It is therefore surprising that the consultation paper has just two sentences on legal aid, with no indication of any extra resource being allocated. Research undertaken by the Law Society of Scotland in 2022 revealed that the most deprived 100,000 people in Scotland are covered by just 29 civil legal aid firms.

The Law Society President Murray Etherington said: “The recently proposed Scottish Government increase in funding may provide a short-term sticking plaster, but it won’t address the deep wounds to the legal aid system caused by a generation of underfunding.”

In evidence to the Scottish Parliament’s Finance and Public Administration Committee, Citizens Advice Scotland wrote of a ‘tidal wave of demand’ for its services, stating: “Demand continues to increase and we are unable to utilise our full potential of preventative and early intervention work through our CAB network across Scotland as the resources are simply not enough.”

Women’s rights

Over the past five years, much of our work has been focussed on the impact of gender self-identification principles on rights and protections for women. We have written extensively about the impact of the Scottish Prison Service’s transgender prisoner policy on women in prison. In our view, accommodating male prisoners with transgender identities in the female estate may breach those women’s Article 3 rights.

We wrote in February this year to the President of the European Committee for the Prevention of Torture, Inhuman or Degrading Treatment or Punishment (CPT) about this. We also wrote to the Scottish Human Rights Commission, following a meeting we had with them earlier in the summer. Copies of these letters can be found below:

MBM letter to the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) 8 February 2023

MBM letter to the Scottish Human Rights Commission 14 August 2023

During the passage of the Hate Crime and Public Order (Scotland) Act 2021, we repeatedly raised with MSPs our concerns about potential infringements to women’s Article 10 and 11 rights as and when the new offence of stirring up hatred on the basis of transgender identity comes into force.

We have previously written about how low the threshold for behaviour or communications considered to be abusive already is, how it can be deemed hateful or transphobic to advocate for female-only spaces and services, or to collect data on biological sex, and that women across the UK have already faced serious consequences for asserting that biological sex matters: they have lost their jobs, faced disciplinary action, been interviewed by the police, and had details recorded on police databases:

MBM Stage 2 briefing on the Hate Crime and Public Order Bill

Ahead of the Act coming into force, the ability of Police Scotland to police impartially in this area is at best, unclear.

A human rights culture requires transparency about the rules and policies which inform the actions of state actors. In August this year, a group of women staged a rally in Aberdeen to raise awareness of the erosion of women-only spaces and services At this event a woman was punched by a transgender rights activist. The alleged perpetrator was issued with a Recorded Police Warning. Guidance for the use of RPWs is issued by the Lord Advocate. However, this guidance is not public. We wrote to the Lord Advocate asking that the guidance be reviewed to give proper weight to the responsibility of Police Scotland to protect ECHR rights under Articles 10 and 11 rights. The reply that we received did not address this point.