A Human Rights Bill for Scotland: consultation analysis

Footnotes

1. According to the consultation document: ‘Ratified by the UK in 1976, the ICESCR sets out the obligations on states (those countries who have signed and ratified the treaty) to guarantee the economic, social and cultural rights contained in the treaty, which should be exercised without discrimination as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.’

2. According to the consultation document: ‘Ratified by the UK in 1969, the ICERD requires states to pursue by all appropriate means a policy of eliminating racial discrimination in all its forms and to promote understanding among all races.’

3. According to the consultation document: ‘Ratified by the UK in 1986, the CEDAW places obligations on states aimed at eliminating discrimination against women.’

4. According to the consultation document: ‘Ratified by the UK in 2009, the CRPD sets out the human rights of disabled people and the obligations on states to ensure and promote the full realisation of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability.’

5. MCOs ‘set a minimum threshold [in delivering a set of rights] which must be always upheld […] irrespective or resources’.

6. According to the consultation document, the initial procedural duty aims to integrate the rights outlined in the Bill into decision-making processes and the delivery of services, ensuring that duty-bearers take them into account.

7. According to the consultation document, the duty to comply focuses ‘on compliance with the right’ and will ensure that ‘specific rights-respecting outcomes are fulfilled by duty-bearers’.

8. Whilst the term ‘LGBTI’ is used throughout the consultation document and this analysis report, we note that respondents may have used different terminology (e.g. LGBTQ+, LGBTQIA+, LGB) to reflect their own preferences or to describe a subgroup of LGBTI people.

9. Progressive realisation refers to the ongoing and gradual fulfilment of rights using maximum available resources.

10. “Equality treaties” refers to the shorthand for discussing ICERD, CEDAW and CRPD together.

11. The consultation document, considered an approach to assessing reasonableness that lowers the threshold for a decision-maker being found to have acted unlawfully.

12. Introducing a Human Rights Bill has been confirmed in the Scottish Government’s Programme for Government 2023-2024.

13. They requested that people in certain groups be consulted on their views on what dignity means.

14. The UN General Comments are published by the body (or committee) of each treaty and are the interpretations of the treaty’s content.

15. The UN Concluding Observations are published by the treaty bodies (like the General Comments) and discuss a State's implementation of a specific treaty, including the positive aspects and the areas of concern, where the treaty bodies recommend further action be taken by the State.

16. The UN Special Rapporteurs, on the other hand, are experts called upon by the UN to report or advise on human rights from a thematic or country-specific perspective.

17. Consultation respondents used the term ‘procedural duty’ interchangeably with the term ‘duty to have due regard’. However, the term ‘duty to have due regard’ is not mentioned in the consultation document.

18. The Yogyakarta Principles address a broad range of international human rights standards and their application to Sexual Orientation and Gender Identity issues. More information on the Yogyakarta Principles can be found on the Yogyakarta Principles website.

19. The PSED requires public authorities to bear in mind how their policies or decisions may impact individuals who are protected by the Equality Act 2010. This duty is applicable only to public authorities rather than private organisations and individuals. The Fairer Scotland Duty is set out in the Equality Act ‘places a legal responsibility on particular bodies in Scotland to actively consider how they can reduce inequalities of outcome caused by socio-economic disadvantage when making strategic decisions.’

20. As described in the consultation document.

21. For further information on MCOs, progressive realisation and non-retrogression, please refer to the consultation document available online.

22. More information can be found in the consultation document.

23. These are stated in Part 9: Implementing The New Scottish Human Rights Act.

24. The UNCRC (Incorporation) (Scotland) Bill incorporates the United Nations Convention on the Rights of the Child (UNCRC) into the law in Scotland.

25. As stated in the Court of Session Act 1988 and amended by the Courts Reform (Scotland) Act 2014, the sufficient interest test requires an individual to ’demonstrate a sufficient interest in the subject matter of the [judicial review] application’.

26. As indicated in the consultation, ‘standing’ refers to who has the legal right to raise an issue with the courts for judicial review.

27. As mentioned in the consultation, the ‘proportionality’ test assesses whether any restrictions of a right by a decision-maker are a proportionate means to achieving a legitimate aim.

28. Aligning with the consultation, ‘standard of review’ means the legal standards that courts use to reach a decision about whether a decision maker has acted lawfully.

29. In line with the consultation, the ‘Wednesbury test’ deems a decision unlawful if it is so unreasonable that no reasonable decision-maker could have reached it. It is a test applied by the courts in judicial review proceedings on public law grounds.

30. As stated in the consultation, structural interdicts are intended to address structural issues, which impact a large number of people, rather than individual issues. They could involve an aggregate of remedies, where the courts combine different options. However, they could also potentially involve a greater role for the courts in reviewing progress or approving plans of action.