A Human Rights Bill for Scotland: consultation

Part 1: Scotland's Human Rights Journey

This part of the consultation sets out Scotland's human rights journey, as context for the proposals for the Bill.

International Human Rights

The Universal Declaration of Human Rights (UDHR) was adopted by the United Nations (UN) in 1948, when the world was recovering from the atrocities of the Second World War. It set out for the first time the human rights – civil, political, economic, social and cultural – everyone everywhere in the world is entitled to. It acted as a catalyst for human rights treaties to be developed and adopted by countries around the world, including the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Together, these three core international human rights instruments are called the International Bill of Rights and provide much of the basis for international human rights entitlements.

Treaties for women and specific groups have also been agreed since the adoption of the UDHR, including the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the UN Convention on the Rights of the Child (UNCRC) and the Convention on the Rights of Persons with Disabilities (CRPD). The UN Convention Against Torture (UNCAT) also sets out clear expectations around the prevention of inhumane and degrading treatment.

Human Rights in the UK

The UK Government has, since the adoption of the UDHR in 1948, signed and ratified these treaties, which means they have agreed to abide by and implement the rights and obligations
in them.

The UK was instrumental in developing the European Convention of Human Rights (ECHR) and the first to ratify it in 1951. In 1998, the Human Rights Act incorporated rights in the ECHR into domestic law, which meant that UK courts could now hear cases relating to human rights set out in the Convention. The UK has over time developed and passed other pieces of legislation that have protected human rights and equality. For example, the Equality Act 2010 has consolidated a number of different pieces of anti-discrimination legislation and now forms the basis of equalities law in the UK.

Human Rights and Devolution

The Scotland Act 1998, which established the Scottish Parliament, builds human rights protections into the bricks of the devolution settlement. It allows for Scottish laws which are incompatible with ECHR rights to be overturned, and means that Scottish Ministers have to act in accordance with those rights. Equal opportunities is mostly reserved to the UK Parliament, but the Scottish Parliament has powers to encourage equal opportunities and to regulate equal opportunities in relation to the Scottish functions of certain public authorities. The Scottish Human Rights Commission was established in 2008, as Scotland's National Human Rights Institution, to promote and protect human rights. Recently, the Scottish Parliament passed the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill (UNCRC Bill), which seeks to incorporate that treaty directly into Scots law, although there has been a delay in taking this forward due to provisions in it being struck down by the UK Supreme Court following a referral by the UK Government. Scotland's National Performance Framework (NPF) – which sets out the Scottish Government's vision of the kind of country we wish to create – has a National Outcome that 'We respect, protect and fulfil human rights and live free from discrimination'.^[1] We have also developed a collaborative National Action Plan (SNAP)^[2] to advance implementation of rights and build a culture of rights across Scotland.

Building Human Rights Leadership in Scotland

In 2018, the then First Minister Nicola Sturgeon MSP established an independent Advisory Group on Human Rights leadership (FMAG) with human rights experts who were asked to examine the human rights impacts of UK withdrawal from the EU and how best to protect and promote all human rights across all potential scenarios.^[3] Specifically, they were asked to make recommendations "on how Scotland can continue to lead by example in human rights, including economic, social, cultural and environmental rights".^[4] Terms of Reference of FMAG: The FMAG reported in December 2018, recommending an Act of the Scottish Parliament which provides human rights leadership developed through a public participatory process and driven by the establishment of a new National Taskforce.

The then First Minister welcomed the findings of FMAG, and a Taskforce was set up to progress their recommendations, and to ensure this work was informed by engagement from the public with input from across the public sector and civil society. The Taskforce reported in March 2021, making 30 recommendations for establishing a statutory framework for human rights to bring internationally recognised human rights into domestic law. Specifically, that report recommended that the new framework should incorporate four international human rights treaties into Scots law:^[5]

• the International Covenant on Economic, Social and Cultural Rights (ICESCR)^[6]
• the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)^[7]
• the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)^[8]
• the Convention on the Rights of Persons with Disabilities (CRPD)^[9]

The Taskforce also recommended that the framework should include the right to a healthy environment; include an equality clause which aligns with the Equality Act 2010 and provide equal access to the rights contained within the Bill for everyone, including LGBTI people^[10]; and include a right for older people. They also considered issues around access to justice, capacity building, participation and implementation.

Since the publication of the Taskforce report, we have established different groups of people to help us develop proposals for implementing their recommendations. This includes:

• A Lived Experience Board, which has been set up in recognition of the importance of involving the public in developing this framework. Membership includes more seldom heard individuals and groups with lived experience of trying to access their human rights. There are 3 different groups on the Board, facilitated by the Human Rights Consortium Scotland, the Scottish Commission for Learning Disabilities and Together: Alliance for Children's Rights. The Board has produced a number of reports to inform the consultation proposals.^[11]
• An Advisory Board, chaired by the Minister for Equalities, Migration and Refugees comprising a range of human rights and equality advocacy and third sector organisations. This builds on previous work carried out by the Taskforce, whose report was informed and co-produced by a significant level of stakeholder engagement with a wide variety of groups, and we are committed to a similar inclusive process as part of our Bill development.^[12]
• An Executive Board, chaired by the Scottish Government's Director General for Communities and comprised of senior decision-makers from public authorities, tasked with ensuring there is capacity across the public sector to implement the Bill and providing strategic support and advice on specific Bill provisions affecting public authorities.^[13]

This engagement work reflects the Taskforce's recommendation that the Scottish Government should adopt an innovative and human rights-based approach towards engaging the public in developing the framework.