A Human Rights Bill for Scotland: consultation analysis

Executive Summary

The Scottish Government ran a written consultation between 15 June 2023 and 5 October 2023, seeking views on a Human Rights Bill for Scotland (referred to as ‘the Bill’). Alma Economics was commissioned by the Scottish Government to analyse the responses to that consultation. This report provides an independent summary and, as such, does not represent the Scottish Government’s response.

The consultation posed a total of 52 questions, including 10 closed questions (e.g. receiving yes / no / don’t know responses) and 42 open-text questions (receiving free text responses). Questions addressed proposals for the Human Rights Bill and its implementation in its entirety, soliciting views on various aspects of the Bill, which were divided into six parts. The six parts were: (i) incorporating the treaty rights, (ii) recognising the right to a healthy environment, (iii) incorporating further rights and embedding equality, (iv) the duties, (v) ensuring access to justice for rights-holders, and (vi) implementing the Bill as an Act.

Responses to the consultation were accepted through four formats, including (i) the Citizen Space online platform, (ii) email (including PDF attachments, Easy Read question responses and child-friendly version responses), (iii) post (hard copy responses, which could be scanned as PDFs), and (iv) by participating in consultation public engagement events (outputs from these events are captured in seven reports that inform this consultation analysis report).

A total of 397 responses were received, 277 of which were submitted through Citizen Space and 120 were sent via email. In addition, a total of 7 Scottish Government-led public consultation events with breakout discussion sessions were held, with over 150 attendees in total. The public consultation events hosted by the Scottish Government took place between 27 July 2023 and 19 September 2023. Respondents included individuals, local councils, civil society organisations, public sector organisations (including non-departmental public bodies (NDPBs)), academic institutions, legal professionals, private bodies, and third-sector service delivery organisations.

Parts 1-3 of the consultation did not include any consultation questions, so the analysis of responses begins from Part 4. Part 1 presented an overview of Scotland’s human rights journey by first presenting the context of international and UK human rights legislation, as well as human rights in Scotland within the context of devolution. Part 2 introduced the high-level objectives for the Bill. Part 3 presented an overview of the rights and the corresponding international treaties that the National Taskforce for Human Rights Leadership recommended be incorporated into Scots law by the Bill.

Descriptive quantitative analysis was conducted on the closed-format questions, and thematic analysis was used to synthesise themes extracted from open-text questions and reports from public consultation events. Recurrent emerging themes in open-text questions were identified and are outlined below for each part of the consultation.

Key findings

Incorporating the Treaty Rights

Part 4 of the consultation focused on the proposed incorporation of the four United Nations (UN) human rights treaties in the Bill. These treaties are: The International Covenant on Economic, Social and Cultural Rights (ICESCR),^[1] The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD),^[2] The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)^[3], The Convention on the Rights of Persons with Disabilities (CRPD).^[4]

The Bill will seek to incorporate, insofar as possible, the rights described in the four treaties and to include and recognise the right to a healthy environment (which does not derive from a specific treaty) while also addressing the wider recommendations of the National Taskforce for Human Rights. The Bill intended to operate clearly within devolved competence. Since the concept of human dignity is to be put at the heart of the Bill, the respondents were asked for their opinion on dignity being considered by courts in interpreting the rights in the Bill and making dignity a key threshold for defining the content of Minimum Core Obligations (MCOs).^[5] Additionally, respondents were asked about their views on the international law, materials, and mechanisms to be included within the proposed interpretative provision, which is expected to ensure duty-bearers, courts and tribunals can interpret the rights in light of international human rights standards. Respondents were asked about their views on the proposed incorporation model and whether there are any rights in the four UN treaties which should be treated differently.

The common theme that emerged in this part of the consultation was the respondents’ support for the proposals regarding the concept of human dignity as well as some elements of the model of incorporation (there was support for the proposed treaties and rights to be incorporated and support for the proposed direct treaty text approach, but there was some disagreement on the proposed duties and the differential treatment of the four treaties). The respondents agreed with the proposals regarding dignity, and they suggested that courts should be required (not only allowed) to consider the principle of dignity during their decision-making. At the same time, though, the request for further clarity was common among the responses to these questions. Respondents asked for clarity and guidance regarding the definitions of ‘human dignity’ and ‘key threshold’ (for defining the content of Minimum Core Obligations), as well as the intended operation of the incorporation model.

Another overarching theme related to the proposals around the duties in the Bill. Respondents commonly supported the proposals for an initial procedural duty^[6] for public bodies, and subsequently moving to a duty to comply^[7] (discussed in further detail in Part 7), which should supplement and not replace the procedural duty, according to the respondents. A commonly raised request among the responses was for a stronger duty to comply on public bodies that will be applied to all four treaties, not only to ICESCR and the right to a healthy environment. Additionally, there was an overarching request for particular attention to safeguarding the rights of certain groups of people, with disabled people being most frequently mentioned. Other groups of people with protected characteristics (such as children and young people, older people, and women) were frequently mentioned, along with vulnerable groups like people experiencing homelessness, people living in deprivation, people currently in care and care experienced people, or people in prison.

Recognising the Right to a Healthy Environment

Part 5 of the consultation focused on the recognition and inclusion of a right to a healthy environment in the Human Rights Bill, as well as the substantive and procedural aspects of this right. Questions on this part sought the respondents' views on (i) the proposed definition of the environment and the proposed content of a right to a healthy environment, (ii) the proposed approach to safeguarding healthy and sustainable food through the ICESCR, and (iii) the consultation’s approach to protecting safe and sufficient water.

Respondents overall agreed with the proposed formulation of both the definition of the environment and the right to a healthy environment. Across various questions, respondents suggested the inclusion of additional substantive elements in the right to a healthy environment. Among those, the most commonly raised were healthy and safe food, clean water and adequate sanitation. A proportion of respondents also offered criticisms and comments for improving this part of the proposed Bill more generally. The most common point was a general sense that the consultation is unclear or vague in terms of (i) the language used, as some respondents urged the need for both a clearer definition for specific terms used in the right to a healthy environment and in the definition of ‘environment’, as well as for more actionable and enforceable language that sets clear requirements, (ii) presenting specific plans for enforcing the rights, including guidance, investment in infrastructure and capacity building, as well as (iii) setting up a clear accountability structure, thus improving access to justice.

Respondents also largely agreed with the proposed approach to including a right to safe and sufficient water as a substantive aspect of the right to a healthy environment, albeit they urged the Scottish Government to also include adequate sanitation as part of safe and sufficient water in light of concerns regarding sewage pollution. On the other hand, the only area of considerable disagreement with the consultation proposals was the proposed approach to healthy and sustainable food. Respondents overwhelmingly supported including healthy and sustainable food as a substantive aspect of the right to a healthy environment across questions in this Part.

Incorporating Further Rights and Embedding Equality

Part 6 of the consultation focused on incorporating further rights into the Bill and employing approaches to ensure the delivery of the rights in the Bill to everyone without discrimination. Questions in this part centred around exploring the best possible ways to (i) signal that the Human Rights Act 1998 (and civil and political rights) form a core pillar of human rights law in Scotland and (ii) embed participation into the Bill framework. Another set of questions sought respondents’ views on including an equality provision in the Bill, aiming to ensure equal access to rights for everyone while exploring the best way to define specific population groups and protect the rights of LGBTI^[8] and older people under the equality provision.

Regarding the question about signalling the Human Rights Act 1998 as a core pillar of human rights law, the key suggestion raised by consultation respondents was to integrate the Act into the implementation of the Bill, including its incorporation into guidance, public body training, any capacity-building initiatives, as well as information and awareness-raising plans for the Bill. Concerning the best way to embed participation in the Bill framework, the primary suggestion emerging from consultation responses was to include an explicit right to participation in the Bill while also ensuring participation in decision-making of those who are more at risk of or with lived experience of rights infringement.

Focusing on people who are more at risk of rights violations, particularly LGBTI and older people who are not protected by specific international treaties, was a major theme emerging from responses in this part of the consultation. Introducing an equality provision in the Bill framework that explicitly states specific population groups, such as LGBTI and older people, as well as disabled people and care experienced people, was commonly expressed by respondents. An overarching theme across this set of questions was the request for providing guidance and additional information to support the implementation of the Bill framework, defining terms such as ‘other status’ and specifying what population groups this covers. This would ensure that both duty-bearers and rights-holders are aware of and understand all human rights and relevant duties.

The Duties

Part 7 of the consultation centred on creating duties related to the rights in the Bill for those delivering devolved public functions. These duties seek to create a framework that better prepares and enables duty-bearers to respect, protect, and fulfil the rights of individuals in Scotland in line with international obligations. Respondents were asked for their views on who the duties should apply to and on the design of the proposed duties. Respondents were also invited to share their perspectives on aligning the right to a healthy environment with the way in which the consultation proposes treating the other economic, social, and cultural rights and on how duty-bearers can demonstrate compliance with the rights.

Respondents predominantly supported the proposed approach outlined in the consultation. They commonly agreed on the importance of demonstrating compliance through progressive realisation^[9] and minimum core obligations (MCOs) for economic, social, and cultural rights as well as applying these to the right to a healthy environment. However, some respondents called for the duty to comply to also apply to the equality treaties^[10], particularly when it comes to certain rights in the CRPD.

A call for guidance and support provided by the Scottish Government to duty-bearers was also prevalent in this section. Although this view was widespread throughout the entire section, respondents most commonly expressed this need when discussing the initial procedural duty, the duty to comply, the proposed reporting requirement and methods for demonstrating compliance. The need for further clarification on aspects of the proposed approach was also commonly expressed by respondents. They most frequently requested clarifications centred around who should be considered a duty-bearer, and how progressive realisation and MCOs are defined as terms. Following this, respondents also requested clarification on how progressive realisation and MCOs as methods to demonstrate compliance would work in practice.

Ensuring Access to Justice for Rights-Holders

Part 8 of the consultation document was focused on proposals that aim to ensure access to justice for rights-holders. A core aim of the Bill is to provide remedies to issues related to human rights that are accessible, affordable, timely, and effective. Another core aim is to provide adequate protection of human rights that will minimise the need for escalated complaints and litigation.

In this part, respondents were asked about their views on the most effective ways of supporting advocacy and advice services. They were also asked about their views on the proposals regarding the front-line complaints handling mechanisms of public bodies. Part 8 of the consultation also requested feedback on the proposed changes to the remit of scrutiny bodies, including the Scottish Public Services Ombudsman (SPSO), and the respondents were asked about the proposed additional powers for the Scottish Human Rights Commission (SHRC) and the Children and Young People's Commissioner Scotland (CYPCS). The consultation asked for feedback on the proposals for the Bill’s approach to ‘standing’ (that is, who has the legal right to raise an issue with the courts for judicial review) and assessing ‘reasonableness’.^[11] Finally, the respondents were asked about their views on existing judicial remedies, whether any additional remedies would be required, and what would be the most appropriate remedy in the event a court finds legislation incompatible with the rights in the Bill.

Support for the proposals was a major theme that emerged through the responses in this part of the consultation. This included the proposals regarding the complaints handling system, the proposed changes to the remit of scrutiny bodies and the SPSO, the additional powers for the SHRC and the CYPCS, and the proposed approaches to ‘standing’ and assessing ‘reasonableness’. There was a common request for ensuring access to justice for certain groups of people, such as disabled people and women, among other vulnerable groups of people or people with protected characteristics. However, another overarching theme across the questions was the request for further clarity regarding the proposals, the expected impact or outcomes that such changes could have, and the way that the various public authorities and scrutiny bodies will interact under the Bill. In addition, a common theme that emerged through the responses was that adequate funding, resourcing, and training would be required for these proposals to be implemented successfully.

Implementing The New Scottish Human Rights Act

Part 9 of the consultation covered proposals for the implementation of the Human Rights Bill once its provisions come into force. It covered the Scottish Government's proposals for (i) adopting a sequential approach to implementation through an initial procedural duty followed by a duty to comply, (ii) establishing MCOs, (iii) establishing a duty for Scottish Ministers to publish a Human Rights Scheme, and (iv) enhancing parliamentary scrutiny of future legislation in relation to the rights in the Bill. The consultation also sought views on how to effectively build capacity across the public sector, foster information sharing and awareness raising, and establish an effective monitoring and reporting process.

Overall, respondents supported the Scottish Government’s proposals for implementation of the Bill, including a sequential approach to implementation, adopting a participatory process in establishing MCOs, and placing a duty on Scottish Ministers to publish a Human Rights Scheme.

Respondents emphasised the importance of several elements for the effective implementation of the Bill. A key theme among responses to several questions was support for a participatory approach across implementation through the inclusion of and co-production with right-holders whose rights are most at risk and third-sector organisations. Respondents felt that the development of clear guidance in accessible and inclusive formats for both duty-bearers and rights-holders would support implementation and awareness raising. Finally, respondents felt that a clear accountability mechanism should be established in the Bill implementation process and that parliamentary scrutiny, the human rights scheme, and monitoring and reporting will support this aim.

Respondents also stressed areas where the proposals should expand as the Bill and implementation work continues to develop. Specifically, across questions, respondents highlighted the need for capacity building through the investment of resources in public services and third-sector organisations who are duty-bearers, as well as offering training, clear guidance and support. Respondents felt that this is particularly important given the current capacity and resource limitations faced by the public sector. Finally, respondents often felt that the plans for implementing the Bill were too vague and recommended that they should include specific timeframes, actions and plans.