 Good morning and welcome to the 29th meeting of the Equalities and Human Rights Committee of 2017. I have apologies from our convener Christine McKelvie and from the substitute member Linda Fabiani. Moving on to agenda item 1, human rights in the Scottish Parliament. Our first item of business today is an evidence session on the committee's forthcoming inquiry examining how the Scottish Parliament should scrutinise and uphold human rights. We are very pleased to be joined this morning by a videoconference link by Murray Hunt, who is director of the Birmingham Centre for the Rule of Law. Good morning to you Murray. Can you hear it? Murray was formerly the legal adviser to the UK's Parliament Joint Committee on Human Rights and a visiting professor at the University of Oxford. He's giving evidence today based on his extensive practical knowledge and research experience in dealing with the rule of law issues both nationally and internationally, especially in the context in the role of Parliament. Welcome again Murray. I'd just like to start with a bit of a soft opener if you could give us your view as to the current human rights landscape in Scotland, particularly in the context of Brexit. If you can give us some insight as to how you think this Parliament, through this committee and beyond, can act better as the guarantor of human rights in Scotland, particularly in that context of that landscape. Thank you very much indeed Mr Convenier and thank you very much to the committee for this opportunity to give evidence to you this morning. Very much appreciate that. Can I just make one very small correction for the record? I'm the director of the Birmingham Centre for the Rule of Law rather than the Birmingham Centre for the Rule of Law. That was my mistake. That's on the record. It's named after Tom Bingham, of course, who is very well known and who gave a fantastically accessible account of the rule of law and what it means as a practical concept. So it's the Bingham Centre. To turn to your opening question Mr Convenier, the current human rights landscape in Scotland, like in many places, is one of concern for those concerned with protection and promotion of human rights, I think. We're living in an age of many threats and challenges posed to the rule of law on human rights. There's a concern, I think, about rollback of current levels of legal protections for human rights. There's a general retreat from international obligations, which seems to be something of a worldwide phenomenon, and there is a rather alarming, I think, attack on many of the legal institutions in particular on which we've relied for many years to protect human rights and the rule of law. So the general context is one, broadly speaking, of concern for protections for human rights. That's why, if I may say so, I think your committee's inquiry is so important. It's extremely important in this context to be focusing on what the role of parliaments and elected politicians in particular is in relation to the protection and promotion of human rights. And I think one of the most potent responses to the democratic critique of our institutions that protect human rights is to focus on what the role of politicians should be and try to embed in the political process proper consideration of human rights matters so that politicians themselves can begin to take more ownership over the concepts in human rights treaties and human rights protections. And of course, the immediate context of Brexit, I know your next panel is going to consider that in more detail in terms of its implications for equality in human rights, is one which does raise many of these questions and possible concerns about whether it does end danger the protection for human rights which currently exists. So it's extremely important, I think, in that context that we do think about how parliaments can take a more active role in protecting and promoting human rights. And to turn to the second of your opening questions, there are many ways I have a number of themes. I've read some very interesting papers in advance of this morning's hearing, in particular the Scottish Human Rights Commission's submission to the Commission on Parliamentary Reform, which has a number of concrete suggestions and recommendations about how the Scottish Parliament itself could respond to this challenge and take a more active role in relation to protecting and promoting human rights. And I've got a number of specific themes which I'm sure will come to in your questions. But I think if I may say so, you're asking exactly the right question. And there is a great opportunity for the Scottish Parliament, I think, to lead by example here. I'm very encouraged by the context of the Commission on Parliamentary Reform's indication of the significance of the issue and you're taking it up in this inquiry. Well, thank you for that very comprehensive answer, Murray. I think that since the start of this session, this committee has recognised just how big and moveable a feast the human rights agenda is, and if we are to act as guarantors on that, then we have to have a weather eye on all of that. We looked in early days of this committee at the fact that there are some 700 concluding observations on our progress or lack thereof against several of the human rights treaties to which we are a party. And whilst we recognise there is a potential road map for both the work of this committee and the wider Parliament in terms of effecting change which improves our obligations to those treaties, it's a bit difficult to really know where to start and how to do so with efficacy, particularly as these concluding observations can be very big or deal with some of the minutiae. Do you have any recommendations as to how we grapple with that and where to begin? I think it's an excellent and very, very important question. I worked for 13 years as the legal adviser to the Joint Committee on Human Rights in the Westminster Parliament, and even by the end of that time was still grappling with that problem. It is often overwhelming, even to those with human rights expertise, the sheer number of recommendations, judgments, substantive considerations from a wide range of international instruments that parliamentarians need to grapple with. And so it's very important to try and approach that rather overwhelming landscape through a very clear framework. And I think that's why one of the reasons why it's so important that there is a specialised human rights committee in every parliament that can take the lead in mapping out that framework and can help the other less specialist committees to identify their points of engagement with that international human rights framework. And this is something I'm sure we'll explore in more detail about the importance of mainstreaming and how that can be combined with a specialised human rights committee. But I think the role of the specialised human rights committee is to make sense of that rather overwhelming landscape and the complexity of it by providing a very clearly understandable framework for other parliamentarians in its parliament. The way in which I would suggest is possibly the best way in is to take the UPR, the Universal Periodic Review Process, particularly because in the current cycle we're particularly well situated as far as the UK's concerned. We've just had just over 200 recommendations from the Human Rights Council to the UK as a result of the UK's third Universal Periodic Review. That's an overarching review process which has generated a number of recommendations which cut across very many different areas. And I think that for me would be the entry point I would recommend for your committee through those recommendations, identifying the recommendations which are those which your committee can best take forward, identifying those which other committees perhaps are better placed to take forward in substantive policy areas, but also identifying ways in which the other committees as well as your committee can engage with that follow up process. And that will then lead I think through that framework of the UPR recommendations to a more substantive engagement with the more detailed concluding observations of specific treaties. So I would recommend that as being the window as it were through which to approach the task which you rightly say it can be rather overwhelming. That's very helpful. Jamie Greene Thank you, convener, and good morning. I wondered if we are a relatively new Parliament in the grand scheme of things, and this is a relatively new committee in the grand scheme of things. I wondered given your vast experience of working within other jurisdictions and parliaments, if you had any suggestions of best practice or things that other parliaments have learned in this process that perhaps would be pertinent to us so that we perhaps don't go through some of those teathing problems in this committee that other parliaments have gone through? Yes, there is an increasing number of collections of good practices, fortunately. So a number of international bodies, the IPU and the Commonwealth have been doing a very good service in actually collecting examples of good practice for around the world. And they are they are steadily growing as I think more and more parliaments realise they've got a very important role to play. So there are some now quite useful and some soon to be published, I think, collections of good practice. For me in the draft principles and guidelines on the role of parliaments in relation to rule of law and human rights, which the Scottish Human Rights Commission has referred to and its submission to the commission, I try to distill from my experience and my experience of working with other parliaments what the what the really main crucial features of best practice are in order to try and help parliaments that want to do this, not in a prescriptive way, but to try and help parliaments which which wants to try to do this. And if I had to focus on the the headlines from those principles and guidelines, I would say one of the most important things of all is to ensure that having a Specialised Human Rights Committee, which is absolutely central in my view and absolutely necessary and of course that's the most important thing, mustn't be an obstacle to the mainstreaming of human rights across the whole parliament. There is a danger of course that a Specialised Human Rights Committee can encourage others in the parliaments to think, well we'll leave all that to the Human Rights Committee because they're the experts, they're the ones who know what they're doing. And I think the way around that is for the Human Rights, the Specialised Human Rights Committee to regard itself as having a special responsibility in relation to mainstreaming. So as well as dealing with certain things that only that committee because of its expertise is can really deal with or is best place to deal with, I think it also needs to assume a responsibility for identifying other opportunities for other committees to engage with the International Human Rights Framework. So if for example there's a recommendation in the latest UPR review recommendations which concerns the criminal justice system, that may be a matter which is actually best dealt with in the Scottish Parliament by the Justice Committee. But for the Justice Committee to engage with that it may be necessary or it may be assisted at least by your committee and the expertise at its disposal identifying the point of engagement for that committee and proactively trying to encourage that engagement. So I see the role of the Human Rights Committee as including an important role as being an engine of mainstreaming, helping other committees to identify how to engage and helping generally the parliament as a whole to identify those points of engagement. If I could add one follow-up point to that, I think in order to cultivate that as a best practice, it's also If you can hear me, we've lost you temporarily so we'll try and come back to you. Okay, that's a good question. Does anyone else want to come in? You've got a follow-up. Oh, and we're back. Are we back in public as well? We're live? Yeah. Murray, forgive us. I think we lost you there for a second. No problem. Do you want to just dial back maybe sort of 30 seconds and continue? So I just finished, I think, saying that the important role of the Human Rights Committee is to be an engine of mainstreaming. I just wanted to add one additional observation to that, that that requires the committee itself to be quite proactive in its relations with other committees and within the parliament, which I know from my own experience can be a slightly delicate matter for a committee because there's always concerns about treading on other committee's toes, but it's necessary to cultivate that relationship. But it also requires, and this I think is absolutely crucial, it also requires the expertise which is available to your committee, including human rights law expertise, including human rights policy expertise, to be proactively available, proactively deployed and deployable to those other committees in order to help them to identify those opportunities for engagement. That's great. And I believe, Jamie, you've got a supplementary on that as well. Thank you for that very comprehensive response. I find that very helpful and I think that there's a lot of nodding heads around the table here on what you've just said. I think just to follow up with a specific example and maybe you could advise us on best practice, is it more appropriate that on a number of portfolio issues such as health, justice, housing, education, that the Equality and Human Rights Committee holds that relevant—can the gentleman hear me or is it—no? Can you hear me okay? No? Oh, the screen's gone blank. I'll wait a second. Exciting for us to be doing this with the International Space Station. Do you want to suspend? Okay. Can we suspend for temporary? Murray, can you hear us? Yes, I can hear you, thank you. We can't hear him. Try again, Murray. I can hear you, can you hear me? Excellent. We're back. So, Jamie. Thank you. I'll make the question brief. Is it better for this committee to hold Government ministers and, by default, Government departments to account within the confines of this committee on other portfolios, or is it better served in those committees with them focusing on the equality repercussions of policy decisions that those portfolio holders make? I hope that that makes sense. Is it better for us to request those committees to do that and we advise them on the best way to do that, or is it more productive within our committee to have the justice minister, the minister for local housing, education, health and so on tell us about Equality's mainstreaming within their portfolios? I think the ideal end state for me would be that human rights would be so mainstreamed across everything that Parliament does, that all those committees would be doing that job in relation to the minister in their particular portfolio. Now, obviously that doesn't happen overnight, so it's probably the case that, especially with human rights having been added to your committee's remit relatively recently, that there will need to be a transitional phase where it's necessary to take things as they come to a certain extent, but with that end state as the ultimate goal. That may mean, for example, that there will be certain areas where there's great overlap between your portfolio and the portfolio of, say, the Justice Committee on a matter like prison of voting, for example, but where the interest of the human rights committee is so great that it's appropriate for you to specialise and to perhaps lead in the first instance on that, but that eventually those sorts of issues will be dealt with in the relevant specialist committee ideally. So I envisage there will be something of a transitional period where there'll be a sort of feeling as you go along on a sort of case by case basis, and it's necessary then to sort of cultivate this relationship with other committees where that's not seen as a territorial conflict. And I think the way it is eased to that if your expertise is deployable across committees so that there isn't rivalry about the claim on the expertise. Good to hear. Mary Fee. Thank you, convener, and good morning, Mr Hunt. My question follows on quite nicely from Jamie Greene's question. Across the Parliament we have individual committees, rapporteurs, that look at particular issues. We have European rapporteurs, do you think it would be beneficial to have rapporteurs and individual committees that specifically had human rights as part of their remit so that they could feed directly back into the human rights committee? Yes, I do very much so. I think the idea of human rights rapporteurs is an excellent one. I was very pleased to see that in the commission on parliamentary reforms report. I think that that, again, will help very much the mainstreaming effort to have a point of contact within the membership of another committee on human rights issues is a very important institutional provision to make that mainstreaming possible. So I think that that is very, very important. It may not be necessary on every committee, but certainly on the most relevant committees where human rights issues come up in their portfolio, a human rights rapporteur would, I think, be a great benefit. And I would also add to that, as well as a member of that committee, it would also be very useful to identify a member of the support staff for that committee, who was also the main point of contact and encourages much collaboration and sharing of information between those points of contact at the staff level, as well as at member level. That is very useful. Do you think that, in addition to that, if we do have individual rapporteurs on individual committees, there is a need for some kind of training, given that the breadth and complexity of human rights legislation, and as we go forward with Brexit, the implications for human rights in this country perhaps may become more advanced, that there is a need for training for people to look at human rights? Yes. The training is always extremely difficult, I think, for members, because members are so busy having worked for many years with members of the Westminster Parliament. I know that the claims on all your time are far more than there are hours in the week, and so abstract training, I think, always poses a difficulty for members, and there's a constant problem everywhere, I think, in getting members to attend abstract training. But I do think that training is very necessary. I'm a great believer, actually, of training on the job, and I think it's possible, especially with proactive secretariats, to combine an element of training of members as they go along and as they're doing their role, which makes it much easier for them to find the time to do it. So I think a self-conscious approach and a reflective approach to, say, developing the role of the rapporteur supported by staff who have themselves done the training, it's much easier for staff to find the time to do the training. I think that's probably the way to do it. Certainly in the Westminster Parliament any attempts we've made to provide training for members have, generally speaking, not reached very many members. In fact, the much more effective way of training is probably the wrong word, but spreading understanding about concepts like the rule of law has been through the activity of all party parliamentary groups. I know there are many cross-party groups in your Parliament as well. I think organising events through all party parliamentary groups or cross-party groups on very topical issues, which are seen through, which are approached in that meeting through a human rights framework or a rule of law framework, is a very good way of engaging members, getting them to see things through the different lens that a human rights framework or a rule of law framework gives them. So I'm more in favour of that sort of training, if you like, than a sort of training course as it works. I think it's unrealistic really for members to expect members to engage with that. In the Scottish Human Rights Commission submission to the Commission on Parliamentary Reform, in section 3.1 it says that there are limitations in the Scotland Act in terms of ensuring that the Parliament is able to fulfil its human rights mandate to protect respect and fulfil human rights throughout all of the Parliament's functions. Could you maybe explain that to us a little bit more and do you have any advice on how we overcome those limitations, if they're set down in legislation? Yes, it's a very interesting question. It's something I've been interested in and curious about, whether, under the devolution legislation, the way in which the human rights compatibility or the EHR compatibility question needs to be addressed prior to a Bill's introduction is an obstacle to parliamentary consideration and discussion of whether a Bill is actually compatible with the EHR. Now, I don't think that there is actually an obstacle in the legislation. I don't think we need to change anything in the Scotland Act, but I do think we need to look carefully at the practices to see whether there's a way around to what could in practice be an obstacle. Obviously, the Commission I think in that part of its report has suggested that the legal advice which the Presiding Officer receives before the Bill is introduced be made public and that that would facilitate more consideration by the Parliament of the human rights compatibility of the Bill. Now, that's one of the few points in the Scottish Human Rights Commission's submission with which I don't agree, and I don't think it's necessary for that legal advice to be made public in order to facilitate more parliamentary scrutiny and debate. For me, the crucial document is actually the policy memorandum, which the promoter of the Bill has to introduce. If I can just explain that a little bit, the way in which the Joint Committee on Human Rights in the Westminster Parliament approached this question was not to ask for the Minister's legal advice before they signed the Section 19 statement of compatibility, but rather to ask for a fuller explanation in the, first of all, in the explanatory notes accompanying the Bill of why the Minister thinks the Bill is compatible. The starting point, our starting point in Westminster, was that the Government is entitled to legal professional privilege, and I think that's just a necessary starting point, so we don't expect to see legal advice as such, but over time we persuaded Government departments that it was actually in their interests to show the working behind the Section 19 statement of compatibility, and we've now reached the point in the Westminster Parliament where we receive detailed human rights memoranda, which are based on the advice which goes to Ministers, which enables the Minister to sign the Section 19 statement of compatibility, but which has taken out anything which is legally privileged, but which nevertheless contains a great deal of the legal analysis, because departments I think have realised that it's in their interests, partly to avoid too many pesky questions from the Joint Committee on Human Rights about things they've already considered, to put that in the public domain, and we now receive very extensive human rights memoranda, which address the EHR questions and have also broadened in some cases to consider UN Convention on the Rights of the Child and other international instruments, and I think that's the way forward to concentrate not on the legal advice that the Presiding Officer receives, but rather the policy memorandum, which I've seen a reference somewhere to the policy memorandum generally containing the only one to seven paragraphs explaining the human rights compatibility of the bill, and I think that policy memorandum could be expanded over time if the right questions are asked of the promoter of the bill with a template of a human rights memorandum, and that's the crucial document which enables and facilitates parliamentary scrutiny and debate, so I think that that for me would be the way forward to work out how to make that policy memorandum address in more detail the human rights compatibility of the bill. Okay, thank you for that. As you mentioned earlier, this is the first time that human rights has been given a place in a committee in the Scottish Parliament and obviously were the equalities in human rights committee. Do you see a place for a human rights committee on its own, or do you think that it's compatible with equalities and we should keep it as it is? I think it's perfectly compatible with equalities, and if the Specialised Human Rights Committee is going to be combined with another subject matter, it seems to me that equalities is the best one for it to be combined with. I think in response to your question, the abstract answer if we had a blank sheet of paper for every Parliament would be an individual Specialised Human Rights Committee would be the ideal, but of course every Parliament is different and Parliaments are of different sizes and have different resources. Member time is at a premium in smaller Parliaments, so I think we have to be realistic about this and not necessarily say there's one size that fits all. I think combining human rights with equalities in one portfolio is a perfectly good way of doing things, particularly if the committee takes seriously what I described earlier as the sort of engine of mainstreaming role and actually is proactive in trying to encourage other committees and helping other committees to themselves get engaged on human rights issues. Going back, you mentioned in your last answer the written views of the Scottish Human Rights Commission in terms of the Commission on Parliamentary Reform. Recommendation 20 of that suggests that the Parliament undertake systematic scrutiny of the Scottish Government's response to court judgments concerning human rights. Are you aware of Parliaments which do that as a matter of course? How effective is it and how big a job is it as well? Even though my background is in human rights, I'm not really aware of just how many judgments there are concerning human rights. If we were to undertake that, how arduous a task would that be? I think it's a very good question, but for me it's an extremely important part of the task of a Human Rights Committee and of Parliaments precisely because as I said in the outset, one of the problems I think we face is this concern that Parliaments are being bypassed by courts and courts are having the final say on human rights matters, whereas in fact most human rights judgments leave an enormous amount of space for political decision making and choice and discretion after the judgment. There are very few judgments which actually prescribe a particular outcome. Some do, but very very few in the human rights context. So the role of Parliaments following a judgment is very important and I think it's very important for not only parliamentarians but the public to understand that, that the ball then goes back to the parliamentary court and there's still a lot to be decided following a judgment and I think that's very important therefore that Parliaments themselves get involved in what should happen now following a judgment. The number of judgments which require some parliamentary involvement is relatively manageable. I think it's possible to put a number on it in any one system, but it's certainly manageable and again if this can be done in the first instance by the Specialised Human Rights Committee which can develop over time a template for identifying the points which the Parliament needs to address and then send those points to the other relevant committees which may be better placed to question their minister about why they're not doing this or that in response to the judgment. There are some other Parliaments which do this and the Parliamentary Assembly of the Council of Europe has been very strong in recommending that the member states of the Council of Europe develop mechanisms within their national parliaments to follow up judgments of the Strasbourg court and there are now some examples from other countries which the parliamentary assembly has gathered in some of its reports where mechanisms are being established in some of the 47 Council of Europe member states to follow up on Strasbourg court judgments. For me that's one... I don't suspend this session until we can re-establish connection. Can you hear us Murray? If we can come back into session that would be great. Murray we lost you when you were just starting to tell us about the Strasbourg court judgments and how they're applied. Yes, so there are now some mechanisms in some of the member states of the Council of Europe for specifically following up Strasbourg court judgments and there are some some quite good examples of Parliaments beginning to do that. For me Strasbourg court judgments obviously are one important source that human rights committees need to have regard to but of course judgments of national courts often raise questions which Parliaments need to get involved in following judgments as well. So national judgments on human rights also very important and this is really all of a piece with what your first question concerned which is other recommendations from international human rights treaty bodies. What should be the response to these recommendations? Judgments obviously are particularly important because they are legally binding on the state and Parliaments have an important role in deciding how to respond to those judgments. So they are at the top of the priority list but the questions that that raises are very similar to the questions of how should Parliament get involved after treaty body recommendations or special rapporteur recommendations or UPR recommendations. So they're all really over peace and a solution can be I think tailored, fashioned, which deals with all of these different sources of international human rights norms that the Parliament needs to grapple with. Before I come in with a follow-up I should remind members of my register of interest having been the past convener of the Scottish Alliance for Human Rights and sitting on the Scottish national action plan on human rights. One of the reasons we have a few enough court judgments to respond to is that there is still an absence of access to justice around human rights because so many of the treaties that we have are not incorporated into Scots law. We have signatories in principle to the general idea of those treaties but we aren't legislating to give people access to justice through the courts. Do you think that incorporation of, for example, the United Nations Convention on the Rights of the Child would be a way of sweeping up all of our outstanding obligations that the periodic review identifies? Would that give us the appropriate access to justice or is that too simplistic? Yes, I think that the incorporation question is always a very difficult one because the political reality I think for many years has been that there's a reluctance at the Westminster level to incorporate further international human rights treaties. I've been very used to trying to find ways of making them more effective, of instantiating them more into policy making and decision making without them being incorporated and I think there is a tendency to think incorporation would cure everything overnight which of course it wouldn't do and with something like the UN Convention on the Rights of the Child there are undoubtedly some provisions which don't necessarily immediately lend themselves to enforceable legal remedies so I would shy away from seeing it as an immediate panacea but I do think there are a huge number of ways in which Parliament's getting more involved in implementing what's in these treaties will actually go very far down the road that incorporation would get us to and just to take the UN Convention on the Rights of the Child as an example you have of course your own legislation which imposes a duty or ministers in relation to having regard to the UN Convention on the Rights of the Child and keeping policy under review and so on that's the very important way of giving Parliament a role of scrutinising what the government is doing in terms of implementing some of those positive obligations and that's something we don't have in England and Wales well in England I should say Wales does actually have something but in England we don't have it and the Joint Committee on Human Rights used your model and the Welsh model to recommend an amendment to the Children and Social Work Bill in the last Parliament to try and give that impose that duty on ministers in order to facilitate parliamentary scrutiny of what ministers are doing and I think many of these treaties like the UNCRC do require active steps to implement them and that sort of duty in your Children Act is a very important way that Parliament can help to implement them and can again bring into the political process a serious scrutiny of what the state has signed up to do in these international treaties so for my part my energies will be spent on trying to enhance Parliament's role in actually implementing the obligations which have been assumed by the state in these treaties rather than thinking that incorporation is a quick and easy answer particularly because of course incorporation may enhance legal remedies to some extent but it doesn't solve the problem of greater political participation in the issues which these raise. So it's just an arrow in the quiver as it were. Well thank you for that. Does anyone want to follow up on that before I move on to questions about budgetary scrutiny? Murray, one of the things that this committee is tasked with every year is looking at the budget, the draft Scottish budget or the work towards the draft Scottish budget through an equality in human rights lens and we do quite well in that we have some very in-depth discussions and submissions of evidence to that end. One of the things I think is fair to say because we're so new in terms of the human rights responsibilities of this committee is that that focus has been predominantly equalities based. How would you recommend that we go about looking at a draft budget through an equality sorry through a human rights lens? I think that's a very very important question and I'm afraid it's one to which I don't have an easy answer because I have very little experience because at the Westminster Parliament we simply haven't gone down that road. It's something on which I think there is an urgent need to address how do parliaments apply a human rights lens to budget scrutiny and I saw a reference in some of the papers that I read before today's hearing to this perhaps being a further inquiry by your committee and I think it is certainly worthy of a very detailed consideration. There has been some very good academic work done on budget analysis through a human rights lens. I tried at the Westminster Parliament to interest the secretariat of the Treasury Committee in incorporating a human rights dimension to budget scrutiny but it was very difficult for me to persuade the secretariat of the Treasury Committee that this was something which was their concern and of their business and again this is one of the things that mainstreaming often comes up against these obstacles. How are human rights relevant to what the Treasury Committee does when it scrutinises the budget? So I don't have an easy answer to your question. I think it's a very important question to ask and I think it would be a very very good subject of a further inquiry. I think incorporating it in conjunction with committees which do the detailed scrutiny of the budget would be the way to do it and so I think this is something where I imagine your committee isn't most expert, expert in many things but not expert in as a committee in scrutinising budgets and so it's something which really needs to be incorporated into the committees which really do the budgetary scrutiny and I think it's probably the biggest challenge as far as mainstreaming is concerned because quite often it's the case that people don't really see how human rights has any relevance but of course so many of the human rights obligations in these unincorporated treaties impose positive obligations on the state to actually do things. Many of the recommendations of the treaty bodies and of the human rights council in the UPR require the state to spend some money and we have to just face up to the fact that the state has assumed a lot of obligations, some of which are quite expensive so we do need to work out how we make sure that that doesn't go unscrutinised in our in our parliaments. Thank you for that Mary and the clerks have asked me if we could get a note of that academic work that you referred to in respect of budget scrutiny either if you want to tell us now or just email it to the clerks after. Of course, I can very easily send that to the class, yes. That would be very welcome. If I can move on to the issues that you've just explored around mainstreaming, I think the baseline that we're at in the Scottish Parliament is that every legislation has an equalities impact assessment carried out on it and more recently following part one of the Children and Young People's Act, a children's rights impact assessment, that's really the limit of what we're doing. Now I think that there's committees in the business of future-proofing human rights for perhaps less-progressive parliaments that may emerge in the future so that we have this built into the fabric, but it's fair to say, having been a lobbyist trying to influence those processes and since becoming a parliamentarian, that sometimes a degree of lip service is paid to both and it is a tick-bock exercise. Now some legislation just isn't really relevant to that and I accept that and they still need to carry it out, but how do we improve that, make that a living, breathing function of the parliament so that, whether that's at a government level or through the institutions of this parliament, that we actually make those processes meaningful or add to them? Again, I think that's a very, very personal question. The trouble with impact assessment is that without the bureaucratic will and commitment, they do turn into tick-box exercises very readily and they're seen as just another pesky bureaucratic requirement that a decision maker has to go through and so the key, I think, is to work with the departments which are producing the bills to make sure that this consideration of human rights matters and human rights obligations and relevant human rights standards is again mainstreamed, embedded in their policy formation process at the earliest possible stage. Now impact assessment is one way of doing that. Impact assessment for me carries another risk as well as the bureaucratic tick-box exercise problem, which is that it tends to make civil servants rather defensive and think in terms of compliance and purely sort of negative, are we doing anything wrong here and I much prefer an approach which looks much more positively, not just at whether a bill is going to get caught out for doing something which is incompatible with human rights, but whether, as they often are, it's actually positively doing something to advance and promote human rights and so I've, in my dealings with bill teams in Westminster, have been very keen to encourage them to think about not just impact assessment but opportunity assessment and to explain in their memoranda what opportunities are being taken in this bill to advance and promote human rights and very often the rationale for a piece of legislation is actually a human rights includes a human rights advancing rationale and once we've encouraged civil servants to think in terms of, in positive terms, of how they're promoting changes and they tend to think less in terms of negative compliance and they engage much more proactively and much more positively with the human rights framework so I think it goes back to the policy memorandum and the importance of the policy memorandum. If we can encourage the promoters of bills including government departments to frame their policy memorandum in a way which identifies the positive human rights benefits and advantages of a particular piece of legislation as well as identifying possible problems then that gets us off first base so I think that the whole, the template for that sort of policy memorandum is a really crucial. Can we just bend while we re-establish connection? Are you with us? Can you hear us? I'm with you again? Yeah excellent fantastic so I think we lost you yeah just pick up where you left off. I was just I was just saying I think we need to, it goes back to the policy, the importance of the policy memorandum and I think we need to build on impact assessment methodologies to see how they can incorporate opportunity identification for the promoters of bills and departments and that does change the whole framework in which human rights scrutiny takes place and it's particularly fitting for Parliament's role of course because Parliament has this particular responsibility but also capacity to set the legal framework and to follow up where a treaty obligation requires positive steps it can actually take the implementing measures and so Parliament's often should be more interested really not in whether a bill is interfering with human rights but whether it's actually missed an opportunity to advance human rights or whether it's gone far enough in advancing human rights and again if we do this through the UPR framework with all the recommendations understood by the Specialised Human Rights Committee it's well placed to identify the opportunity to suspend again just while we re-establish connection and we're back. Hi Murray thank you for sticking with us impressive hearing and you were just finishing your remarks on the opportunity assessment which I think we were all just in the margin there very interested in as a proactive step we could take forward so please by all means continue. I think and I was really just saying that I think the Specialised Human Rights Committee is very well placed if it's familiar with the wide range of recommendations contained in treaty body concluding observations and outstanding judgments and so on to identify those opportunities so it can often work with government departments that are bringing forward bills to encourage them to explain what they're trying to do in that framework and often I've found in my experience bill teams don't realise that something they're bringing forward in a bill is actually implementing a recommendation or going towards implementing a recommendation and once that's a different way of approaching things is in place it enables much better scrutiny a much more engaged ministerial and departmental engagement with Parliament. Fantastic thank you Murray Murray you wanted to come back. Thank you convener. I share the frustration of the convener in relation to equality impact assessments and the lip service that is paid to them and I just wondered what your view is on is there a way that we can change impact assessments to make them more relevant? Is there a standard format in the way that we need to carry them out or could we in the Parliament here make changes? The difficulty I think lies in the culture in the departments I think this is why it's so tricky because so long as the impact assessment is regarded as something which has to be done at the end of the process as it were in a policy formation so I think there isn't I don't think there's an easy answer it requires a cultural change and in a way that's the Parliament's role is to bring about that cultural change by asking questions at the earlier stage of policy formation making the promoters of legislation realise that these things need to be addressed because the answers need to be there so it's not a very satisfactory answer but I think it's something that can only the change can only be brought about by Parliament doing its job of asking those questions which raises another point as well which is the importance of Parliament and its committees engaging even before bills are being brought forward so engaging on consultation papers and the human rights questions which are issues which are raised on consultation papers and trying to get involved at the very early stage of policy formation in all relevant areas in order to try and ask the right questions asking the right questions is the absolutely key thing for any human rights committee identifying those questions and asking them in a public and transparent way the earlier that's done in policy formation the more we'll get to the end state where we don't have a tick box impact assessments so I'm afraid it's a it's a long process but it can certainly can be accelerated by all committees taking that approach and asking those questions at the earliest possible stage okay thank you I believe Jamie Greene has a final quick question on this as well thank you convener just falling on from what you said that's very interesting comments around the culture of civil service and perhaps a defensive line that they may take because they feel that when we are probing on impact assessments or whether they've taken into account equalities and human rights and their policy decision and application of that policy there is a often a defence mechanism what have I done wrong why you're asking me these questions how do we how do we move to a culture shift where they're from a top-down approach where the ministers cabinet secretaries the directorates the director of directorates and still within their own departments a positive view that those policy decisions will be taken with equalities and human rights in mind at the beginning of the policy making process rather than retrospectively at the end as I what didn't you do at the end of the exercise do you have any experience or examples of other civil service departments for example in in in in Westminster who have really taken this on board and had a massive culture shift within the department how do we ensure that our own government ministers instill that same positivity I think I'll come back to whether there are any really good practice examples from in the UK government I think one of the crucial levers to achieving the cultural change is to persuade in the first instance civil servants and also hopefully eventually ministers that it's actually in the government's interests to encourage parliamentary debate about the human rights compatibility of legislation and this is something which I think is little understood but increasingly there are signs that it's becoming understood that courts are increasingly influenced by the amount of democratic consideration and debate there has been of laws before they've actually been enacted and under the doctrine of the margin of appreciation in human rights law it's clearly a consideration which the Strasbourg court increasingly has regard to not as a purely procedural matter have they discussed this and debated it but on the basis which I think is correct that laws are likely to be more to be better and to be more democratically defensible if the difficult balances which they strike have been properly debated in parliaments and what I've found that the bill teams which are most engaging most encouraging most most forthcoming in the information they provide about the human rights compatibility of legislation are the ones which have understood that message and the best example I can give is in relation to a home office bill the protection of freedoms bill which implemented the Marpa judgment the Strasbourg court judgment in Marpa and the DNA database and there's a passage in the human rights memorandum in relation to that bill which fairly explicitly says that the government recognises that if this is the human rights compatibility of this solution is debated in parliament that's a positively good thing and something to be welcomed and that's based I think on this insight that subsidiarity means that courts do give respect to properly taken democratic decisions where there's been proper consideration of human rights issues not as a purely formalistic thing but it is clearly relevant and I think governments are beginning to realise that it's in their interests therefore to provide the information and the detail of why they think something is compatible and then positively to encourage there to be parliamentary debate about it and to respond to real concerns which are raised so I think that's the biggest lever to the culture change that you're describing in terms of good practice I think probably the department for education in Westminster is the best example of a department which has embraced explaining the compatibility in a positive sense of their legislation with international human rights law including the Ewing Convention on the Rights of the Child. There are some very good examples of human rights memoranda from the department for education which they voluntarily provided where they have explained why in their view the bill positively promotes children's rights and if we can suspend briefly just while we re-establish connection I think I'm just going to wind Murray I think you're back hello yes great we can come back so Murray you were just concluding your answer to Jamie there just concluding I think the department for education is probably the best and I can provide your clerks with some examples of some human rights memoranda which have come from the department for education which are good examples of positive engagement with Ewing Convention on the Rights of the Child's requirements and explaining provisions in bills in terms of their furthering recommendations in the Ewing Committee on the Rights of the Child's reports and furthering the UK's implementation of some of the positive obligations in that treaty. Great stuff well Murray unfortunately we're going to have to leave it there but can I thank you first and foremost for persevering with the tech and it's been it's been difficult but very grateful to our audio visual guys as well for helping us along the way can I for one and I'm sure I speak for the rest of the committee thank you sincerely for your contribution this morning it's been incredibly illuminating and actually helped us I think frame a view as to how we proceed as the human rights guarantor within the parliament and I hope this will be the beginning of a long and productive relationship with yourself and we'd like to certainly invite you in person to come and see us at your earliest opportunity can I just spend the session briefly for a very quick comfort break and invite the new panel to come and take their seats thank you. Welcome back to this session and I'd like to move on to agenda item two which is our topic as the departure of the UK from the European Union and the implications for equalities and human rights so it's a obviously this is the next in a series of evidence sessions we're undertaking on the potential impact on brexit on equalities and human rights in Scotland and I welcome to the committee no stranger Lynn Welsh who is head of legal in Scotland which is equality and human rights commission at the equality and human rights commission I should say and David Cabrally who is the senior lecturer in commercial law at the University of Edinburgh welcome to you both thank you for taking the time coming and seeing us today obviously this is a changeable landscape but I wish I would hope and ask if that in your opening remarks you could just address as to where you think we are right now in terms of human rights as a landscape in Scotland and what potential changes and implications that brexit might mean as we move towards departure a broad question yes excuse me I'm a bit croakly this morning obviously the commission has concerns about the effect of the withdrawal bill and brexit generally on equality and human rights across Great Britain at the moment there is an undertaking that neither the equality act 2010 nor the human rights act will be changed as a direct result of the EU withdrawal bill but I suppose our concerns are what happens after that and what protections can get built in at this early stage to ensure that equality and human rights generally across Britain is preserved at least if not enhanced which would be I suppose our ideal position you'll have seen from the briefing paper that you have before you that we have looked at five amendments five different areas where we think the bill should be amended to try and ensure those protections are built into the legislation I can take you through those if you want me to do that sort of individually yes that would be very helpful grant so the five that we have been looking at in relation to the bill are ruling out the use of delegated powers to amend equality and human rights law including a principle of non-regression in the legislation retaining the EU charter fundamental rights introducing a new constitutional right to equality and looking at how the courts can ensure that they continue to take account of EU case law all of those I think have some element of devolution issue if you like related to them because we have to look at how the Scottish Government Scottish parliament will be using powers that they receive or interacting with the bill more generally so I start with the sort of delegated powers to amend I mean this has been talked about a lot in the general sense the Henry VIII clause that allows amendment without the need to return to parliament we think that is is not the way to go especially around equality and human rights legislation and we're putting forward amendments to ensure that those delegated powers can't be used now that will include hopefully stopping those delegated powers being used in the Scottish Parliament as well as at Westminster because at the moment delegated powers are going to be given to the Scottish Parliament and we want to ensure that those are not used inappropriately to cut back on the protections that are presently in place the principle of non-regression is the introduction in effect of duty on ministers at Westminster to certify the new legislation that they bring in as a result specifically of Brexit does not diminish human rights or equality law obviously they have said that those rights will come direct from EU law as they stand but it's moving forward what will happen and a no regression requirement would ensure that as a direct result of Brexit at the very least those rights can't be reduced as we progress we would also like as a lot of organisations have have said I know to retain the protections in EU charter fundamental rights I think that government have indicated Westminster government have indicated that they believe that most of those rights are somewhere in UK law or coming through UN treaties and we don't believe that either of those is entirely the case the EU charter was brought in by the EU because it recognised that all of the law that it was passing required underpinning fundamental principles like of non-discrimination rights for children rights to an effective remedy when you take EU law cases and so they created the charter to ensure that underpinning was there and if the charter doesn't come in along with the rest of EU law then a lot of that underpinning is gone and some very direct and useful rights available to citizens here will disappear with it. It's true obviously that the UK state has signed up to various international treaties but generally those are not able to be enforced directly in the courts here whereas at the moment the EU charter is so it is a huge loss if that charter is not brought over along with the rest of EU law. To try to help with that we also would seek to see the introduction of a constitutional right to equality and that would work somewhat like the human rights act it does at the moment where you have a right and through that lens of equality if you like Parliament and all public authorities have to consider whether what they are doing what legislation is being passed will take forward that right to equality. So in the Scottish Government of Parliament that would be ministers in the way that they give a human rights statement that their legislation is compatible now that added to that would be a statement that the legislation doesn't breach the right to equality down south if legislation would then be challenged there would be a finding or could be a finding by the courts that legislation was incompatible with that right to equality in Scotland obviously that would likely lead to an ability to say that the law that the legislation is not law in the way that we can with human rights challenges. So it's building in that direct right to equality which again would underpin a whole lot of the EU law that is being brought over. And the last is around looking at how the European Court and the UK courts interact. It's been a sensitive subject in a lot of ways. I think that there's a general recognition that there does need to be some way for courts to look at what's happening in Europe and where they can use to the benefit of citizens here the sort of case law that's going through. And so we would like to see it again a clause included in the bill which allows courts in Britain to look to decisions of the European Court where there may be some doubt as to what the legislation in Britain means for us. Thank you for that. Before I bring you in David, I'd just like to pick up on that last issue. I mean it's fair to say that judgments, international court judgments and case law were something of a catalyst to the kind of anti-EU feeling that we had in this country particularly around things like prisoner voting and the rest of it. How confident are you that we can mitigate that and still find a mechanism to look to international case law to ensure that we're not falling far behind? I mean I think that it's part of education perhaps of citizens and governments in that we're talking about EU rights rather than sort of human rights more generally and it tends to be that sort of human rights court decisions like prisoner voting that yes, it allows headlines to be made in certain places. This is slightly different in that it is legislation that is already here in Britain because we're coming in through the EU that is being looked at so it's our law and we're not asking that UK courts have to be following what is said in the European Court in relation to legislation. It is much more considering what is there and whether they find it helpful but the final decisions if you like in relation to all that will always lie with the UK courts. David, would you like to give us your views on how Brexit is going to affect our human rights landscape? Yes, thank you for the opportunity to come here and give evidence before you today. Before I say a little bit about the potential impact of Brexit on equality law in the UK, I just want to set the scene with the current legal position and I do apologise for insulting your intelligence because this is fairly basic law. There are two angles. First of all, the devolution of competence from Westminster to Scotland, I'll cover that, but first of all what I want to cover is how the interaction between the Westminster Parliament and the European Union is currently framed. What we can think of is competence to create policy past legislation in equality law. It's basically shared between the Westminster Government, the Westminster Parliament on the one hand and the EU on the other. The relevant articles in the European Treaty, the Treaty on the Functioning of the EU in equality law are articles 19 and article 157. Both of these articles have direct legal effect between horizontal parties. That's basically between private citizens. It means that these articles can actually be invoked by a citizen against an employer, for example, in a local court. Article 19 basically enables the EU to pass European legislation in relation to equality law. There are nine protected characteristics that I'm sure you're aware of. The means by which the EU does that is through European directives rather than regulations because they seek to achieve rather than maximum harmonisation of equality laws in the EU, but a minimum harmonisation because they give each country scope to make decisions as to how they implement the directive in each of their countries. Article 157 is the equal pay measure, which enables primarily female employee claimants to claim that they've been paid less than a comparator male. That's the basis for the equal pay. Those are constitutional rights, but it's essentially Westminster lending sovereignty to the EU. When we leave the European Union, what then happens is that that sovereignty is repatriated back to Westminster. The question, I suppose, is whether it's retained at Westminster or whether part of it is devolved to Scotland. That's really an open question. That takes me on to the second scene setting point, which is in relation to the current devolution settlement. I'm sure that you're aware that one of the main areas of equality law that's been devolved by the 2016 act is the power to legislate in relation to gender representation on public boards, but the power is wider than that because it covers each of the nine protected characteristics. Conceivably, it would be possible for the Scottish Government to create policy in respect of the other nine protected characteristics such as disability if they want to promote disabled participation in non-executive appointments on public boards. That would be perfectly legal under the current devolution settlement. The second area where power is devolved from Westminster to the Scottish Parliament is a little bit tricky from the actual legislation or the wording of the legislation because it basically says that the Parliament has the competence to pass legislation on equal opportunities in relation to the Scottish functions of any Scottish public authority, so that would be a local authority or some other public authority or a cross-border public authority, so an authority that's UK wide but has a specific Scottish remit. There's then an exception to that where the Parliament doesn't have power. This is where it gets a bit tricky. That says that competence to amend the equality act 2010 is reserved in relation to the Scottish functions of a Scottish public authority or a cross-border public authority. However, there's another exception to that, which says that the Scottish Parliament, however, does have power to pass legislation where it's proposing to introduce legislation that improves on the rights provided by the equality act 2010. What that means is that it's a bit difficult to figure out, but what it seems to be saying is that where a Scottish public authority is exercising a public function, a public sector organisation exercising a devolved competence in relation to Scottish public power, it can improve on the rights granted by the equality act 2010, so in other words, it can ratchet up the protection. That's the current position. Ironically, one of the effects—there's a lot of potential downsides to Brexit—is that it would be possible for, with the consent of Westminster, it would be possible for the Scottish Parliament to introduce positive discrimination measures because at the moment those are specifically precluded. There's no power in that regard because of EU law. If we leave the EU and, depending on the settlement with regard to how we take account of European Court of Justice decisions, whether they will simply be persuasive or we don't need to take them into account at all because they will continue with the embargo or the prohibition on positive discrimination measures. It depends really on that, but in theory it would be possible for the Scottish Parliament to pass legislation that promotes persons with the nine protected characteristics to the extent that people without those characteristics are discriminated against—in other words, positive discrimination—because at the moment that's not possible. It's only possible—what's possible is positive action and that's the extent of it. That's one ironic effect of Brexit. That's within the gift of the Scottish Parliament because it would mean that representation of persons with protected characteristics on public boards would be possible to pass legislation or create policy that enables the Scottish Parliament to positively discriminate in favour of persons with disability and various other characteristics. As regards the general impact of Brexit, I suspect that if there are no protections in the terms that Lyn Welsh has mentioned in the withdrawal bill, then over a period of years it's likely, as I've said in the written evidence, that some of the current incarnations of the equality regime will be diluted. Historically, a specific provision in the Disability Discrimination Act between 1996 and 2004 said that small employers did not need to comply with the disability discrimination. I think that it was if they had 15 employees or fewer. I suspect that, over a period of time, legislation may be passed to introduce the small employers' exemptions across the board of the protected characteristics, not just in relation to disability. Secondly, what is not possible under the current EU law settlement is for compensation or remedies to be diluted or to be reduced in their power. I suspect that that will be something that may be diluted over the course of the next two decades. We have caps on compensation under the domestic unfair dismissal regime and there is a potential for that to be introduced with equality law as well. Also, one of the perennial issues in equality law is who is protected, which individuals are protected. On the face of it, lots of people are protected, but when you dig deep and look at the law, there are quite a few people who you would think would be protected but are excluded. EU law currently has a concept of the individual who is protected that is very broad, but, again, the potential would be to narrow that down and there are a number of ways that would be possible to do. I know that Mary Fee wants to come in, but can I just come in with a question on what you just said? One of the things that we focus on in this committee is future proofing the processes and policies of this Parliament for perhaps less progressive regimes in the future, so that they are locked in and in the fabric. One of the negative outcomes of Brexit is that that future proofing is unravelled and that successive regimes in the UK, irrespective of what political hue, are unencumbered now from rolling back on some of the provisions and protections that artists enjoy. Is that right? Yes. Without, number one, a preamble in the EU withdrawal bill that specifically entrenches the current incarnation of the equality regime, or number two, a non-regression clause in the bill, or number three, the insertion of a constitutional right to equality. There is an argument that even with those, whether that would be legally sufficient, but let's imagine that they are not there, then there is absolutely nothing to prevent future Governments or Parliaments from removing or diluting equality rights. That's very troubling. Mary Fee. Thank you, convener, and good morning to you both. I also sit in the Justice Committee, and earlier this week the Justice Committee were down in Westminster to meet with our counterparts across a number of different committees to talk about the impact of Brexit on justice, about access to justice and information sharing, which also has a human rights angle to it, because it is all human rights related. It was fascinating, the people that we may and the views that were expressed, and there is huge concern among the people that we talked to in Westminster on citizen rights. I would be interested to hear your opinion on that. There are also concerns that have been raised around information sharing in relation to trafficking—whether it is for forced labour or sex trafficking—but they also raised a specific concern about the Scotland Act and the references in the Scotland Act to the EU. There seems to be no indication coming from Westminster or from the EU what will replace the reference to the EU within the Scotland Act. Will it just be removed? Will something else be put in? Will there be some other protection put in? I would be interested in your views on that. I know that that is quite a lot—I am asking you—but there are lots and lots of questions in one. I would particularly like to ask you, Mr Cibrelli, from your paper. I am interested in why you think that the prohibition of associative discrimination claims may be affected. I asked you that question, because for 12 years I was a lay member of tribunals and we grappled with what is associative. I am interested in your view on that in particular. Who would like to start in that whole kind of round-up of things? I was wondering in relation to your first comments around your experience in the justice committee. As I have said, the EU's raw bill certainly does if we lose the charter having effect on human rights across Britain in a way that we would not like to see. The Human Rights Act remains, and there is as yet no change in relation to that legislation or what it means for citizens of the UK. We need to be firm on that now and going forward that those are not diluted in any way. It may be a separate argument to come at a different time. People think that because we are withdrawing from Europe that all of that will be lost. There is a perception that it is going to go, even though we know that it is not. It is not. I think that that is absolutely true. I think that there is a job for organisations like ourselves and others to be clear about the rights that still are there for individuals such as they are. That is something that we could look at and have looked at to somebody's end as we are going forward. What replaces the reference to EU law in the Scotland Act? I do not know that we have looked at that in detail as yet. I am not aware that the UK Government has suggested anything as yet in relation to that. I would have presumed that it may just simply be removed, but I am not sure. It is a short, unhelpful answer. I will take the first question and then the last one. The first question strikes me as an issue relating to access to justice. To what extent can citizens access and enforce their equality rights? What is often overlooked is that, in each of the European directives, tucked away right at the end, there is a little article or a sub-article that says that when a country, a member state, implements that particular equality law in its country, its jurisdiction, it must ensure that the enforcement mechanisms are something like effective, I cannot remember why, there are three words effective and dissuasive. Essentially, it proofs the right, protects the right because it means that citizens in these countries must have an effective means of enforcement. You may recall some reports that I think was at the beginning of the coalition Government where there was a report called the Beacroff Report and in there there were various recommendations made about perhaps limiting the compensation because at the moment there is no maximum cap for equality claims, but that was just precluded, that was a non-starter because of these clauses that are tucked away in the directives because there has to be absolute access to justice. Once we leave the EU, those clauses will obviously no longer be effective, meaning that in theory it would be possible for a future Government to place limitations on the compensation that it may be claimed, perhaps limit the remedies and so forth. Having said that, I should note a caveat and the caveat, if you asked me this question before the 26th of July I would have said that without these protections in the directives then the Government really had power to limit, you know, really make access to justice very, very difficult, but since the 26th of July my belief in the judiciary and the common law has really been restored because the decision in unison which abolished the employment tribunal fees reminded us of the power of the common law to ensure that access to justice is something that every citizen enjoys. That is one caveat. Although it looks bad, there may actually be a silver lining and that is in the guise ironically of the common law and the judiciary, which is quite interesting because it reminded us of the liberties that every citizen has and the importance of access to justice. I think that the final point was the impact of leaving the EU on associative and perceptual discrimination. Now, as the Equality Act 2010 is currently awarded, associative and perceptual discrimination claims are abundantly clear that they are perfectly legal. However, they are supported and they are buttressed by underlying EU law, which specifically says that associative discrimination and perceptual discrimination, each member state in their legislation must recognise that. Once we leave the EU, decisions such as Coleman, which was the care worker who had a disabled son, and she was discriminated against and was successful because of discrimination related to the disabled son, and other EU ECJ decisions such as SHES, the Romanian case about the electricity meter, will no longer be part of our law because they ensure that associative discrimination and perceptual discrimination are protected. Once they go, it means that a future Government could amend the Equality Act 2010 to remove them because they are controversial. There is no underlying theory as to how you determine whether someone is associated with another person with a protected characteristic and also how you determine whether someone who is perceived to have a protected characteristic should be protected and why so. It would take an amendment to the legislation because the court decisions stand as they are at that court decisions in the UK that have followed on from Coleman and similar, so it would take an actual amendment. Given how controversial it all is, the chances are that nothing will be done. It is a possibility, but it is certainly possible. Thank you, Mary. Jamie Greene, I believe that you have a question. Thank you, convener. Good morning, panel. I would like to press or at least explore more Ms Walsh, your comment around the proposal for constitutional right to equality. I find that, in principle, an admirable ambition, but I would like to discuss the practical application or the implications of such in that, is parity achievable for everyone? I say that in the context of another piece of legislation that we are looking at in the islands bill in that there is an understanding that parity of equality is not always achievable. An example might be, for example, someone living on an island does not have access to the same social care as someone living on the mainland in Scotland, for example. If there was a constitutional right to equality, would that create issues for local authorities, public bodies, Government bodies in producing policy that was contrary to that constitutional right? It could become difficult to govern, difficult to implement and rather expensive. Do you have any views on that? It would certainly not be the intention that a constitutional right to equality would have that outcome. I suppose that the way that that would be mitigated against would be that you are looking at a non-discrimination clause that would also contain a right of justification, similar to indirect discrimination, for example, does at the moment. There would always be that balance between ensuring equality and non-discrimination, but recognising that, on some occasions, a difference in treatment can be justified. I am about to say something that sounds very controversial but is legally true. There is no such thing in this country as a right to equality. There is only a right to equality if you are someone that you are associated with or you are perceived to have one of nine protected characteristics. It is not possible for someone to go to an employment tribunal or a court and say, I have been treated less favourably than Lynn Walsh and they ask me why. I say, well, no particular reason, it is just less favourable treatment. I always have to show that my less favourable treatment or disparate impact that I have suffered is related to one of nine protected characteristics. If there was a constitutional right to equality, I would imagine that it would follow that same scheme, which would therefore mean that there would be a constitutional right to equality if you possess one of the nine protected characteristics. Potentially, that is true, but there has certainly been discussion about the constitutional right to equality being wider following more of a human rights act or human rights convention system, which has a sort of, and any other, personal characteristic. In theory, you could use human rights law in the way that you are describing. Now, if you use article 14, discrimination in human rights terms, but again, there are justifications built into that in relation to state action, so it might not just be the nine, but there is still a justification issue. Does she have anyone? Okay, bring in Mary Fee. Well, I think we're probably okay to move on then. Okay, Jamie. In that case, we talked in the last session a little bit about budget scrutiny and scrutiny of government. I was very intrigued by the submission of the Scottish Human Rights Commission submission section 6 on budget scrutiny, and I found your comments very helpful and insightful. In 6.3, you say that budget analysis is a critical tool for monitoring gaps between policy and action, but in 6.4, you then go on and say that, in monitoring Scottish Government spending, the Parliament can, if necessary, hold the Government accountable for inadequate performance in the area of human rights. Could you explain or enlighten the committee as to what or how you think Parliament can and does or should hold the Government accountable for inadequate performance? I have seen it very rarely in practice, I think, in my short time in this Parliament, so I'm really intrigued to see what your views are on how you think we could do that much better. This is our paper, I'm afraid. It's the Scottish Human Rights Commission's paper. I do apologise. No, it's a regular conclusion between the equality and human rights commission and the Scottish human rights commission. Yeah, and our sister organisation, but they are responsible for this paper. It's a very interesting paper. They'll come and explain it to you, if you ask me. I would welcome your views on how you think the committee and indeed Parliament in general can ensure that Government is held to account, if you have any views on it. I'm happy to repeat the wording that they used. The Parliament can, if necessary, hold the Government accountable for inadequate performance in the area of human rights. As I said, I wonder what practical things we can do as a committee to hold the Government to account. Sorry, it's not something that I've put my mind to for today, my apologies. Likewise, I could imagine that you may construct human rights, fair of key performance targets, assess policy and the impact of policy against them, but it's not something that I've given them the potential to teach. Thank you. Mary. Convener, I wonder perhaps if you could give us your view on the impact or the potential impact of Brexit on the working-time directive, because you'll know that the working-time directive was hugely beneficial, but also hugely controversial. A number of organisations and one that I previously worked for jumped through hoops to get people to sign opt-outs and thought up all sorts of very intriguing ways to ensure that people didn't sign up to it. What do you think the potential implications are for that? I'll go ahead. So, just before I answer your question, I'll just set the same. So, the working-time directive from, I think it was introduced in 1996 or 1998 from my collection, there's two elements to it. First of all, limits and secondly rights or entitlements. Limits, the main one is the 48-hour working week. The difficulty with that is it's more or less ineffective and that's because there's an opt-out and the opt-out is built into an employment contract when someone first enters into employment. They sign the contracts and by signing the contract they are effectively opt-out of the 48 working week. So, even if they don't opt-out, there are still various derogations and exceptions. For example, for professionals they would be exempt because they would be quote, unmeasured working-time workers and there are other exceptions as well. So, the 48-hour week limit is actually quite, it was quite, secondly, there are the entitlements and there are entitlements to rest breaks, so daily rest breaks, weekly rest breaks etc etc, fairly uncontroversial and then finally the main right that is quite controversial is the holiday leave, so annual leave and holiday pay. There have been a lot of cases over the past seven years on holiday pay and annual leave, some of which are quite extraordinary in the scope of protection that's offered to workers. For example, there's no right for an employer to pay you rolled up holiday pay, which is essentially means that if you're employed for six months, you don't get any holidays and you don't get any holiday pay, instead the holiday pay is just added on to your wage and then smoothed out across the six months. Also, if you go on leave, annual leave, then you're entitled to receive your normal ordinary remuneration, that will include commission, that will include voluntary overtime, that will include compulsory overtime and you can claim for that as part of the holiday pay that you receive. Now, these recent cases are all quite controversial and once we leave the EU, the position regarding the authority of the European Court of Justice and what the settlement in the withdrawal bill will largely determine how we treat these cases, which are quite far-reaching in terms of their protective capacity for workers. If we no longer have to have regard to the Court of Justice's decisions, then we will obviously not have the future decisions to take in account. The position of the past decisions, okay, we have to honour them, but in reality, as soon as the case comes before the Supreme Court, they can easily depart from the previous jurisprudence of the Court of Justice of the EU, their own jurisprudence, in other words, their own decisions and also the decisions of the lower courts. Effectively, it would be possible for the holiday leave and holiday pay rights to be stripped back. I would just add that it is one of the areas that we would have concerns about changing relatively quickly. We talked about others before that. There are not these regulations and rights that are not contained in the Equality Act, but they are equality law in the broadest sense, and there is no suggestion that the withdrawal bill will protect those, unless we can build in some of the other protections. Can I ask the panel in respect of the 111 returned powers that are coming back as a result of Brexit that should technically be devolved to the Scottish Parliament, but that is obviously still a subjective discussion and debate at Westminster? Number 46 is equal treatment legislation, and that is quite an opaque term. I, for one, have not really got to the bottom of what that means, but it does sound like something that we should be interested in as a committee. Can you give us a very quick summary of what equal treatment legislation means? We have looked at it to some extent. You are right that it can mean a variety of things, depending on where you are starting from. There is equality legislation in Scottish legislation now, so the equal opportunities opt out relates to discrimination. Not all equality law relates to discrimination, so there are bits in the housing legislation, for example, that allow tenants to ask for reasonable adjustments. Taxis having to take guide dogs are not discrimination, they are brought in separately in Scottish legislation. Specific duties, obviously, are also separate. There are pieces of equality law in Scottish legislation now, so it would certainly apply to those. You are noted other pieces of EU legislation that bring in rights to accessibility, for example, in transport and other areas for disabled people that are not discrimination and would be brought in through Scottish legislation in action, because it would be your job in so far as transport and stuff is devolved to ensure that those are met. I think that it covers all of those equality areas in the broadest sense that do not directly relate to discrimination that you would find in the Equality Act, although, of course, as David has said, there is now a right also to pass discrimination law in Scotland. Presumably, that broad term would also include that power that you already have. Would you like to add anything, David? Yes. Item 46 is just correct so that I am absolutely clear. That is the powers that are being repatriated from the EU to Westminster. Item 46 is one of the 111 powers that the Scottish Government currently contends should be devolved directly to the Scottish Parliament under the principles of the Constitutional Convention of 1997, but it is still a matter of discourse at Westminster. If we start at the beginning and ask ourselves what happened in 1972 or whenever it was, what happened then was that the UK lent some of its sovereignty to the EU, and one of the areas in which it did that was equality law. It basically said to the EU, we have the power to pass legislation related to equality, but so do you. That is now article 19 in the treaty on the functioning of the EU. What we can then say is that what is being repatriated back to Westminster is what was passed under article 19, and that is the equality directive. It is the race directive of 2000, which is race discrimination. It is the recast equality directive of 2006, which is equal pay, and it is also sex discrimination. It is the framework directive of 2000, which was sexual orientation, discrimination also disability age and religion. There have been other directives as well, social security directives, also directives in relation to access to services, gender discrimination and access to services. Those are the bits of legislation that have been passed under article 19. They come back to Westminster. The item 46 is saying that when it comes back to Westminster it should then be devolved to the Scottish Parliament. The argument for that would be that some elements of equal opportunities law have been devolved to the Scottish Parliament, but, as we know, they are actually quite limited. In fact, if I was being honest, they are very limited the power that the Scottish Parliament has. Yes, equality law is devolved but only a minute element of it. I can see the argument but, on the other hand, most of the legislative competence at the moment is with Westminster. When the EU competence comes back, it will probably be 99 per cent and maybe 1 per cent here, but those are just ballpark figures. But an important 1 per cent, even if it is only that. Absolutely. That is very helpful. I think that if it is okay with the committee, I would like to ask the clerks to write to the Scottish Government about this specific issue, just to ascertain what the Scottish Government understands the equal treatment legislation to mean, what they hope to get out of the repatriation of that power and, if it really is, just about equalities that are largely reserved, what their case is for having the whole of that item 46 return to Scotland. Any other questions from my colleagues here? Jamie. Thank you, just a minor one. Can I just confirm, Mr Kerbell, that this is your contribution? Yes, it is. Okay, good. Sometimes the labelling of our items is confusing with the codes, so I do apologise. A really interesting piece of documentation on section 37 of the Scotland Act 2016. I do not want to go into too much detail for time purposes but, basically, if I jump to your conclusion, where you say that, on balance, section 37 of the Scotland Act 2016, in your view, it appears to go beyond the recommendations in Smith, and as such cast the net of the Scottish Parliament much wider in relation to legislative competence. Is this a positive statement or is it a criticism of where we're at with section 37? It's really just a statement fact, I think. I'm not really expressing any opinion on the desirability of the legal position under section 37. Because Smith was quite clear, it was saying that competence should, in equalities law or equal opportunities law, should be devolved but only as regards sex discrimination on the boards of public sector organisations but only in relation to a non-executive appointment. But section 37 doesn't do that, it actually goes beyond that. Can you say I'm not sure we would completely agree with that because, from memory, I don't have it in front of me, Smith said something like the gender representation on board stuff or, in fact, not gender or protected characteristics. As a minimum, something like that. There was something in it that suggested that it would go further, which is why the Westminster Government did put in the extended delegation. Yeah, it was a bit cryptic, I think. Yeah, but that's certainly what led the Westminster Government to go further than just to put in the boards. I think that to clause 60 of the Smith commission it says, so equal opportunities would be reserved to Westminster except the introduction of gender quotas in respect of public bodies in Scotland and the power to legislate in relation to socio-economic rights in devolved areas. I think that there's probably other parts to say of the Smith commission that I overlooked that refers, but I can't, you know, I just saw clause 60, and on the face of it, section 37 does go beyond that. There's no doubt about that. I guess the rationale for asking is that you're opening comments where you said that actually the ready is devolved competence to legislate across all protected characteristics, not just on the issue of gender balance or sex. I wasn't sure where that competence came from, I was trying to dig deeper as to the source of that confidence, I guess. Yeah, that's basically section 37, and then section 37 then goes on to have all this sort of elaborate architecture about Scottish public functions and Scottish public authorities and where they can pass legislation and when they can't, and it's a little bit cryptic to be perfectly honest with you. It is, but we would encourage the Scottish Government to look at what they can positively do with it, I think, at its possibilities there. We know it can do things like add protected characteristics, there's been discussion around, for example, covering care experience for young people who we know are discriminated against in their lives, and although it is restricted very much to public authorities and discrimination, hopefully the protection from discrimination in that area, that in itself could have huge implications and improve the lives of people regardless, so we would certainly encourage thought and enthusiasm. Well, I'd like to thank you both very much indeed for coming this morning. It's been, as ever, a very illuminating session. We clearly have a lot of work to do on this, and if you think of anything that you would have liked to have contributed in respective our session about Brexit this morning that you didn't get the chance, please do contact us in the future, but I'm sure we'll be seeing a lot more of you both as the months go by. Thank you very much. Before I close the formal part of the meeting, I'd just like to say that we did receive notification from Annie Wells during the meeting that she was unable to make it, so we record her apologies. I suspend this meeting of the committee. Thank you.