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Improving women’s rights in Scotland

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Engender, women's rights, CEDAW, Scots Law, report“Now is the time to ensure that we take every measure we can for women’s equality.”

The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) is a UN Convention which was signed by the United Kingdom in 1981, and ratified in 1986.

UN Conventions are signed by member states (known as States Parties) only, and therefore Scotland is not a signatory to CEDAW, although many of the women’s rights protected by CEDAW fall under legislation which is devolved to Scotland.

Engender has now launched a paper discussing whether incorporating CEDAW into Scots Law would result in better realisation of rights for women in Scotland.

Written by Professor Nicole Busby and Professor Muriel Robison, it explores what impact such an incorporation would have on women’s equality, sets out how incorporation could happen, and discusses other legal mechanisms which might be needed for women’s rights to be fully realised in Scotland.

Engender commissioned Professor Busby and Professor Robison to compile this report to examine the two following questions:

Could CEDAW be incorporated into Scots Law? What would the impact of this be?

What other legal mechanisms or duties could Scotland create to enable better realisation of CEDAW?

Section 1 provides an introduction to and overview of CEDAW, section 2 considers the available compliance mechanisms, section 3 provides a brief consideration of CEDAW’s application in UK Law. The remainder of the report considers the questions highlighted by Engender in turn (sections 4-10) and a summary of conclusions is provided in section 11.

In their 14page report, they consider that although CEDAW undoubtedly has the potential to enhance the current gender equality framework provided by Scots law, there are barriers to its current use and to its incorporation.

CEDAW’s current enforcement mechanisms are weak and are reliant on political will, public awareness, advocacy and invocation. Awareness of CEDAW and its potential use as an advocacy and litigation tool is low and so increasing its visibility and giving effect to its provisions in domestic law are important aims. One potential course of action in this respect is incorporation of the Convention into domestic law.

Successive UK governments have failed to act despite repeated recommendations for CEDAW’s full incorporation into UK law by the CEDAW Committee. Combined current circumstances including the possibility of a renewed devolution settlement following the Brexit referendum results and the Westminster government’s intransigence regarding human rights and equality more generally might provide a ‘political moment’ for CEDAW’s incorporation into Scots law.

Further traction for CEDAW’s incorporation in Scotland could be provided by its express provision in the renewed Scottish National Action Plan on Human Rights (SNAP) which is due to be drafted in 2018.

Notwithstanding the potential that exists under Scotland’s human rights framework, the process of incorporation would be wholly reliant on political will, and the current devolution settlement would prevent full constitutionalisation which could only be achieved by an Act of the Scottish Parliament. Without further devolution of some currently reserved policy areas, such as equalities and employment, it is difficult to see how incorporation would impact directly on the lives of individuals in Scotland.

Aside from full incorporation, there are several alternative legal mechanisms or duties available in Scotland that could be used to ensure better realisation of CEDAW.

These include the imposition of Ministerial reporting requirements and/or a ‘due regard’ duty to be inserted into relevant legislation or through enhancement of the Public Sector Equality Duty and/or Scotland’s proposed Socio-Economic Duty provided for under the Equality Act 2010.

Soft law options including CEDAW’s express inclusion in a Scottish Bill of Rights which, although lacking in terms of direct enforcement, could greatly assist in awareness raising among legal advisors and others which in turn could help to operationalise CEDAW through judicialisation.

Speaking at the launch, Engender’s executive director, Emma Ritch, said: “We’re delighted to launch this paper which shows that CEDAW, the UN bill of rights for women, should be incorporated into Scots Law; ensuring the maximum protection and promotion of women’s rights we can.

“For 25 years Engender has been working for women’s equality, and throughout this work it is clear that women’s rights are not some abstract concept, but integral to all aspects of women’s daily lives.

“The rights which are meant to be protected under CEDAW are being violated every day, and now is the time to ensure that we take every measure we can for women’s equality.”

To read the full report, click here.

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