Human Rights Bill consultation: facilitator guide

5. What will be in the Human Rights Bill

The Human Rights Bill will bring four international human rights treaties into law in Scotland, introduce a new right to a healthy environment, and include measures to ensure those rights apply to everyone equally. It will include specific rights for women, disabled people and people and groups who experience racism.

The International Covenant on Economic, Social and Cultural Rights (ICESCR)

This treaty is about ensuring people have a standard of living that reflects their human dignity.

It sets out everyone's right to an adequate standard of living, including access to adequate food, housing, and clothing.

The ICESCR also contains rights to the highest attainable standard of physical and mental health, to education, to take part in cultural life and to enjoy the benefits of scientific progress.

All these rights should be delivered equally, without discrimination.

The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)

This treaty sets out how everyone can enjoy their human rights equally, regardless of their race, colour, descent, or national or ethnic origin.

Governments who agree to it must take actions to end racial discrimination, to end incitement to racial hatred, and to combat prejudices.

Governments must also promote tolerance and friendship among different national, racial, or ethnic groups.

The Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW)

This treaty is about equality between women and men.

Governments who agree to it must make sure there are protections in place for women in relation to pregnancy and maternity, in family planning, rural living, trafficking and prostitution, and around marriage and family life.

It requires governments to work to fulfil the human rights of women and girls, end discrimination against women and take action to change cultural practices that harm women and girls.

The Convention on the Rights of Persons with Disabilities (CRPD)

This treaty is about how disabled people face barriers to their rights.

Governments who agree to it should work to make sure people with disabilities can enjoy their human rights and live with dignity.

They should take actions to remove barriers so that the rights of disabled people are respected.

The actions they take should be informed by principles to make sure disabled people can take part fully in society and be respected and accepted.

The Right to a Healthy Environment

The human right to a healthy environment was recognised by the United Nations General Assembly in 2022.

A right to a healthy environment will help us place the environment at the heart of our decisions so that the environment we create for ourselves, and for people in the future, is one where human rights can still be realised.

By building this right into the Bill we will help to deliver a safer climate, healthier ecosystems and biospheres, and reduce the number of toxic materials released into our environment.

How will these treaties be brought into Scots law?

Bringing these treaties into Scots law is a challenge because each treaty is different but also overlapping.

Some of the rights they contain apply to everyone, and some only apply to women, disabled people, or people and groups who experience racism.

They were written at different times over many years, and so some have more detail than others in saying what governments should do to make the rights within them real for people.

The treaties include areas reserved to the UK Parliament.

All of this affects how we could set out the treaties in the Human Rights Bill. There are different ways to do this. The consultation refers to our approach to doing this as our preferred 'model of incorporation'.

Our approach is to incorporate the rights in all four treaties into the Bill using the same wording as in the treaties themselves. We would remove any text covering areas reserved to the UK Parliament.

This will ensure we follow the treaties as closely and as clearly as we can.

We want to make sure that public bodies and private organisations delivering public services in Scotland will clearly understand what they need to do to make people's rights real in practice.

Taking this approach means that in any future legal cases about rights in the Bill, courts will use the text of the Bill and can also look at guidance from international best practice, to understand what the rights are meant to achieve in practice.

Who are duty bearers under the Bill?

The term 'duty bearers' describes the organisations in Scotland who are expected to give effect to rights and duties included within the Bill.

The Scottish Government itself is a duty bearer. Other examples of duty bearers include your local authority or health board, your school, and care providers.

Some public services are delivered by private companies. We want the duties to apply to companies when they carry out those services. This includes when they provide services under a contract with a public body.

What will duty bearers in Scotland have to do under the Bill?

We want to make sure duty bearers in Scotland are better prepared and able to respect, protect, and fulfil the rights in the framework.

Initially, they will have to show how they have built human rights into the decisions they make. This is described in our consultation as the 'initial procedural duty'.

It is 'initial' because it is the first duty that will be brought into force under the Bill once it has become an Act.

It means that duty bearers must be able to show they have thought about the rights in the Bill when making decisions and delivering services.

This duty is meant to ensure new laws, policies, plans, and budgets set by duty bearers take account of people's human rights.

The Bill will also create a duty to comply for some of the rights, to be brought in at a later point and after the initial procedural duty.

Once this duty begins, duty bearers will then have to use their resources to meet a basic minimum standard in delivering the rights, and work towards meeting the rights fully over time.

If they don't do this, they can be challenged through complaints mechanisms or the courts.

These duties will be brought into force in law at different stages. The consultation refers to this as 'stages of commencement of the duties'.

This is meant to ensure duty bearers have time to prepare to meet their new duties under the Bill. For example, they might need to train their staff, create new processes to help inform decision-making, or change procedures such as how they respond to complaints.

The Bill will also require duty bearers to report on the actions they have taken to realise the rights in the Bill and show their plans for improving rights in the future. The consultation refers to this as a 'reporting duty'.

How will duty bearers and the courts make sense of the rights?

We want the principle of human dignity to be the core value for understanding and interpreting the rights in the Bill.

Human dignity is a term used by human rights experts. It refers to the inherent equal worth of every person and access to their rights which reflects this.

Using this approach will allow courts and duty bearers to use human dignity as a guide to understand the rights in the Bill. This is referred to in the consultation as an 'interpretative provision'.

How does devolution affect the Bill?

The way we bring the treaty rights into Scots law must account for devolution. The Scottish Parliament can only make laws in areas that are not specifically reserved to the UK Parliament.

For example, healthcare and education policy are devolved to the Scottish Parliament. Defence and immigration are areas reserved to the UK Parliament.

The Scotland Act 1998 reserves the power to make laws on most equality matters to the UK Parliament. Our consultation refers to this as the 'equal opportunities reservation'.

This means there are limits on how the Scottish Parliament can make laws to prevent unequal treatment between people based on sex, race, disability, and other protected characteristics.

This limits what we can do for some of the rights in the international treaties we want to bring into Scots law.

We propose drafting our Bill carefully so that we work around these areas reserved to the UK Parliament.

We believe this will help ensure strong protections for human rights within the limits of our devolved settlement.

How will we ensure equal access to the rights in the Bill?

A key goal we have for the Bill is that everyone has equal access to the rights it includes. We want to achieve this through an 'equality provision'.

The provision will help ensure equal access to the rights in the Bill for everyone.

A Human Rights Scheme

We aim to place a duty on Scottish Ministers that will require them to report on actions they take, or plan to take, to implement the Bill. It will be called the 'Human Rights Scheme'.

It will be published regularly so that people can check what Scottish Ministers are doing to make the rights in the Bill real in practice.

It will function as a guide for overall implementation by making sure that Scottish Ministers report on the different areas of the human rights framework the Bill will create.

This will include work to increase public participation in decision-making, and work to raise awareness about human rights.

It will also include plans for building the capacity of duty bearers to make rights real, improvements to how human rights are monitored and reported on, and work to build human rights into how budgets are set.

Potential questions for facilitation

1. What do you think about the treaties being proposed for incorporation? Is there anything in these treaties that really matters to you?

2. What do you think about plans to recognise the right to a healthy environment in law?

3. What do you think about our approach to putting the rights into law?

4. What do you think public bodies should need to do to comply with the rights the Scottish Government has proposed to put in the Bill?

5. What do you think about proposals for Scottish Ministers to publish a Human Rights Scheme?