Scottish lawyer supports putting the ICCPR into Scottish legislation

Ewan Kennedy

I’m pleased to publish Scottish lawyer Ewan Kennedy’s recent written submission to the Citizen Participation and Public Petitions Committee (CPPPC), supporting the Petition to implement the International Covenant on Civil and Political Rights (ICCPR) into Scots law.

He finds the Scottish Administration’s response to the Petition “unhelpful” in that it doesn’t see the need for all ICCPR rights to be put into Scottish legislation. And he faults the Parliamentary Research unit’s (SPICe) Briefing for not focusing on “the tricky issue of Article One", the right of self-determination. They both claim that “the majority of the rights in ICCPR have already been given domestic legal effect through the Human Rights Act (HRA) 1998.”

However, the HRA is based on the European Convention on Human Rights (ECHR), and there are at least two major problems with relying on it for all human rights.

First, neither the right of Self-Determination nor Direct Political Rights - the right to launch referendums and popular initiatives - (ICCPR Arts. 1 & 25, respectively), have been incorporated into ECHR.

Second, ECHR recognises Parliamentary Sovereignty but not Popular Sovereignty. Popular Sovereignty means that the People, not Parliament, are the ultimate source of political power and authority in Scotland. In its 2023 paper, Building a New Scotland, the Scottish Government affirms that Popular Sovereignty is Scotland’s constitutional tradition:

https://www.gov.scot/publications/building-new-scotland-creating-modern-constitution-independent-scotland/pages/5/

This begs the question - why are the Scottish Parliament and Administration promoting ECHR when it denies the ordinary Scottish citizen their sovereignty and their right to self-determination, but not ICCPR which provides both?

It’s not because the Scottish Parliament lacks the legislative competence to give the People these rights. Schedule 5 of The Scotland Act 1998 explicitly states that “observing and implementing international obligations” are NOT reserved to Westminster.

Holyrood has the authority to act. But they need to feel the pressure - from us, the People.

As of today, PE2135 has 7,013 signatures. If you haven’t already, please urge your family, friends and colleagues to sign the petition and ask your constituency and list MSPs to support it.

PE2135/F: Implement the International Covenant on Civil and Political Rights (ICCPR) in Scottish legislation

Ewan Kennedy written submission, 11 June 2025

I have been following developments regarding the above petition, and trust that you will accept this submission to the Committee. I do not claim to be an expert, but note in passing that in 1968, the year that the Covenant was signed by the UK, I graduated in Jurisprudence and went on to study further at the Hague Academy of International Law. Because of that I have retained an interest and for many years combined being a part time academic with practicing law as a Glasgow solicitor.

Since that time much of the Covenant has been incorporated into domestic UK law. It is a long established cornerstone of the principles necessary to support modern democracies. I will not lengthen this submission with references to statements by our representatives in support of it, but simply suggest that it would be impossible to find a current MP or MSP who would deny the validity of any of its provisions.

I have read the responses to the Petition from the Scottish Government and SPICe with interest. Frankly, I find the former unhelpful; having noted briefly that the majority of rights, unspecified, under the Covenant have been incorporated, nothing further will be supported. The response from SPICe, with respect, correctly states the principles under which the devolved legislative process operates, but does not specifically focus on the tricky issue of Article One, which for convenience I quote in full:

https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights

I suggest that Article One is perhaps the only one of the numerous provisions in the Covenant that may raise the issue of legislative competence under the rules around the devolved settlement.

I am as aware as anyone else of the ruling by the UK Supreme Court in the Referendum case, and that it must be regarded as final and binding. As I understand matters, however, the Petitioner does not seek that Holyrood should do anything so self-defeating as to repeat that exercise. In essence he simply asks for acceptance of a principle already accepted universally by all civilised countries, and by all (one hopes!) of our elected representatives.

I suggest that SPICe be requested to return to the subject and prepare a detailed analysis for further discussion on how Article One could be handled in Holyrood when the Committee decides to support it, which I trust they will.