By Leah Gunn Barrett
Respect Scottish Sovereignty has received two written responses from the Scottish Government’s Directorate for Constitution (DfC) and from SPICe, the Parliamentary research unit, regarding our petition, PE2135, asking that the International Covenant on Civil and Political Rights (ICCPR) [ be incorporated into Scots law.
While the Scottish Government concedes that the Scottish Parliament has the authority to implement international human rights obligations into Scots law, it asserts that these obligations only apply to devolved matters. It also asserts that implementing ICCPR would extend Holyrood’s powers. Both assertions are false as we explain in our letter below.
Tellingly, the Scottish Government response was signed by a civil servant, Dominic Munro, who reports to Whitehall. Prior to joining the Scottish Government, Munro worked in several Whitehall departments including HM Treasury and the Department for Trade and Industry.
It was NOT signed by the Scottish Minister for Constitution, Angus Robertson, which speaks volumes.
The SPICe briefing paper claims that because the European Convention on Human Rights (ECHR) has been enacted into UK law, it already covers the rights in ICCPR. But ECHR omits Direct Political Rights (referendums and initiatives) in ICCPR Article 25. Without Direct Political Rights, Scottish citizens can’t exercise their Sovereignty.
SPICe also claims that implementing ICCPR is outside Holyrood’s competence. Wrong again. Schedule 5 of the Scotland Act 1998 clearly states that ICCPR implementation is not reserved. In effect, Westminster has delegated legislative competence for implementing ICCPR to Holyrood.
In summary, Holyrood already (i) has the power to implement ICCPR in full, and (ii) the power to ask the Scottish People to decide the issue in a Referendum. We are merely asking them to get on with it! The UK civil service should butt out - it’s none of their business!
If the Scottish Government refuses to organise a referendum, then RSS will ask Scotland Decides to do it for them.
Here are the RSS responses (in full) to the Scottish Government and SPICe.
Response to the Scottish Government, 31 January 2025
The Scottish Government’s written submission was signed by the Directorate for Constitution (DfC) rather than, as one would expect, the responsible elected representative and Cabinet Secretary for Constitution, Mr Angus Robertson MSP.
The Director of DfC, Mr Dominic Munro, is a senior UK Civil Servant reporting to Whitehall.
Scope of ICCPR and the Scotland Act
The response completely ignores PE2135’s request to give ICCPR “full legal effect” (UN recommended wording) in the devolved lawmaking process. Both the Scottish Human Rights Commission (SHRC) and United Nation Human Rights Committee (UNHRC) have repeatedly recommended full ICCPR implementation - without any reference to devolution - most recently in their reports of 4th February (Page 15, Art. 20) and 3rd May (Page 2, Art. C 5(a)) 2024.
As noted previously, the phrase, “it is important to note that this only applies to devolved matters within the competence of the Scottish Parliament,” is irrelevant to ICCPR implementation. It’s also incorrect to state that: “This route cannot be used to effectively extend the Parliament’s powers by claiming that the incorporated international treaty provisions now allow the Parliament or the Scottish Government to do anything that would have previously been beyond devolved competence”. There was no notion of “devolved competence” prior to the Scotland Act 1998 which, insofar as powers to incorporate international Human Rights treaties are concerned, remains unamended and in full force.
The above two phrases are a perfect illustration of what the SHRC refers to when it says in its 4th February 2024 report: “The Commission recommends that the UK, at every level of government, desists with all policy activities which restrict or undermine the level of protection for civil and political rights as set out in the present Covenant…” (Page 64 Annex A Part B)
Sovereignty
The above DfC statements seek to restrict and undermine the Sovereignty of the Scottish People and we call on the Citizen Participation and Public Petitions Committee (CPPPC) to join us in vigorously resisting such attempts. Such Unilateral Declarations of Westminster Control (UDWC) have no place in a serious debate on Scotland’s system of devolved National Governance.
Conclusion
We leave the closing thought to the inaugural Chair of the SHRC when he said in 2022:
“I hope that these personal reflections of a traveller have demonstrated that, although clearly it needs to be carefully managed, the Supreme Court judgment on the UNCRC Bill is rooted in the past. It will not define the limits for the future and indeed its impact is actually more likely to be that of helping to focus debate on the next steps on Scotland’s human rights journey.”
By giving ICCPR full legal effect in the devolved lawmaking process, PE2135 is an essential next step on that journey.
Response to the SPICe Briefing for the CPPPC (Citizen Participation and Public Petitions Committee)
We have the following comments on the SPICe Briefing:
Brief overview of issues
The individual and inalienable right of all citizens to direct Political Rights (ICCPR Art. 25) is notable in its absence from the list of example Human Rights.
Direct Political Rights were included in the Universal Declaration of Human Rights of the United Nations in 1948 (Art. 21) but were deliberately excluded from the ECHR when it was signed in 1950 (ratified by the UK in 1951). They nevertheless reappeared when the ICCPR was signed in 1966 (ratified by the UK in 1976) (Art. 25).
The SPICe briefing doesn’t mention the UN Human Rights Committee (UNHRC) publication 1996 Addendum to ICCPR Art. 25 which describes, in particular: (i) access to Popular Initiatives and Referendums (Comment No. 6), and (ii) the capacity of citizens to organise themselves (Comment No. 8).
Nor does the briefing mention the UNHRC Recommendation which has been ignored by Holyrood and Westminster for years:
“The State party (i.e. the UK) should…...ensure that all Covenant rights are given full legal effect in all jurisdictions that fall under its authority or control….” (3rd May 2024 Report: Page 2, Art. C 5(a)
Further, UNHRC General Comment 31 of 26th May 2004 states:
“The … obligation to respect and ensure the rights recognized by the Covenant has immediate effect for all States parties.” (Page 3, Art. 5)
Legislative competence
Sections 29 & 30 of the Scotland Act 1998, together with Schedule 5, confirm that full ICCPR implementation is not reserved meaning it’s within the Scottish Parliament’s competence. Section 30 clearly states:
“Schedule 5 (which defines reserved matters) shall have effect”.
This has been recognised in recent Government replies to RSS communications and is entirely logical - in recognition of the Covenant, in 1998 Westminster delegated legislative competence for implementing ICCPR to Holyrood.
This text in the SPICe briefing is therefore a complete red herring:
“Given the restrictions on legislative competence, the Scottish Parliament can only legislate in devolved areas…”
As we noted above, the Scotland Act is clear that there are no restrictions on legislative competence with respect to ICCPR implementation - any such restrictions would violate a Covenant which the UK ratified in 1976. The Scottish Parliament is therefore competent to (i) implement ICCPR Art 25 (a):
“Every citizen shall have the right and the opportunity (a) To take part in the conduct of public affairs, directly…”
and, equally, to (ii) incorporate Art 1, Self-Determination, in Scottish legislation.
Because implementation is within the Scottish Parliament’s competence, the Referendums (Scotland) Act 2020 is applicable. Inserting the phrase “Subject to referendum” by Parliament, as the last article in the Bill to implement ICCPR as requested in PE2135, would allow the Scottish People to finally decide the issue in a national referendum.
Incorporation of international human rights treaties
The inaugural Chair of the Scottish Human Rights Commission (SHRC) commented on the Supreme Court judgement on the UN Convention on the Rights of the Child (UNCRC):
“On the one hand and significantly so, the judgment essentially reaffirms that human rights are not reserved to the UK Parliament by the Scotland Act and that Scotland can incorporate UN treaties, so thank you Donald Dewar”.
If you haven’t already, please sign the petition, and share it widely.
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