Part 6: Incorporating Further Rights and Embedding Equality
This part of the consultation sets out our views on incorporating further rights into the Bill, and our approach to ensuring that the rights are delivered without discrimination.
Civil and Political Rights
Human Rights Taskforce Recommendation 1(a)
Re-state the rights protected by the Human Rights Act which gives domestic effect to the European Convention on Human Rights.
We have considered whether the Bill could restate the rights in the Human Rights Act 1998, so that all rights are in one place. We understand that the recommendation for a restatement of the Human Rights Act 1998 rights was driven by the desire to have all rights set out together in one place in an accessible way. As stakeholders have acknowledged, given the status of the Human Rights Act 1998 as an enactment which is protected from modification under the Scotland Act 1998, the Bill cannot have any substantive effect on these rights. We are concerned that attempting to restate the rights protected by the Human Rights Act 1998 could be seen to have an effect on those rights and could place the Bill at risk of challenge on legislative competence grounds, with limited benefits in relation to clarity, accessibility and the enjoyment of the rights. We do not want to risk this Bill not coming into force, thus preventing change to improve people's lives; however, we recognise the importance of recognising rights as indivisible, interrelated and interdependent, and we will consider further with stakeholders how we can best do so within current constraints.
We have been considering our position on the potential for incorporation of the UN Convention against Torture (UNCAT) alongside the four treaties, given the Taskforce's suggestion we explore this further. We noted that Article 3 of the ECHR ("No one shall be subjected to torture, inhuman or degrading treatment or punishment") is already given domestic legal effect in the Human Rights Act 1998 and is embedded in the devolution settlement via the Scotland Act 1998. In addition, the principles that underpin specific articles of UNCAT are also given domestic effect in Scotland through a range of legal provision including in relation to extradition and the common law. Given it is already strongly accounted for within the constitutional settlement and other legislative provision, we are not therefore minded to pursue incorporation of UNCAT within this framework legislation.
We have also noted recent suggestions that we could consider incorporation of the International Covenant on Civil and Political Rights. We consider that the above rationale applies to this too given the Human Rights Act 1998 incorporates civil and political rights in the ECHR into domestic law and is itself protected from modification.
12. Given that the Human Rights Act 1998 is protected from modification under the Scotland Act 1998, how do you think we can best signal that the Human Rights Act (and civil and political rights) form a core pillar of human rights law in Scotland?
Human Rights Taskforce Recommendation 29
Further consideration be given to including an explicit right to participation, drawn from the principles of international human rights law, within the legislation.
Participation is a crucial aspect of taking a human rights approach, and we are committed to ensuring effective participation in policy development for the Bill prior to introduction and beyond. Participation was a central theme of the discussions of the Lived Experience Board, both in terms of the ongoing development of the Bill and for rights-holders generally in policy and decision making. The Board felt that people should be more involved in meaningful decisions about services that affect them, and that public services need to do more to involve people who are often seldom heard, or even invisible, in existing participatory processes.
In order to help achieve that, we want to ensure that participation is embedded within the relevant parts of the Bill, including the proposed Human Rights Scheme (see Part 9), in order to support both implementation and accountability for progress. It is important that this aligns with the broader Scottish Government approach to participation; for example, the review of the operation of the Public Sector Equality Duty (PSED) in Scotland is considering stronger duties in this area. We are mindful of the need for any duties related to participation to be deliverable in practice by public bodies and so will look carefully at the views expressed through the consultation on the PSED to further inform and align our thinking in this area going forward. A number of other pieces of legislation also have participation requirements, so there is precedent for this. We remain open to engagement and views on this.
13. How can we best embed participation in the framework of the Bill?
Equality provision within the Bill
"[What difference would it make for children and young people if Scotland puts extra rights into Scottish law, especially rights for women and girls, disabled people, and children and families who experience racism?]
It would impact the young people of Scotland in the long term as we would grow to unlearn the prejudice taught to us by the older generations who did not have these rights in place when they were young and likely did not have the opportunity to mix with people from different backgrounds." - Member of Lived Experience Board
"People's lives are very significantly impacted by discrimination against women and discrimination against disabled people, but you need to have equal access to information and ways to address that, not only for people who can shout louder or are in the public eye." - Member of Lived Experience Board
Human Rights Taskforce Recommendation 8
Include an equality clause which aligns with the Equality Act 2010 and provides equal access to everyone to the rights contained within the Bill.
The success of the Bill depends on the rights being incorporated in a way which means their protection can be enjoyed and accessed by everyone equally, regardless of status. To ensure everyone can access the rights under the Bill without discrimination, we want to include an equality provision.
Whilst the equality treaties are aimed at eliminating discrimination against women, disabled people and people and groups who experience racism, the purpose of an overarching equality provision would be to ensure equal access to the rights in the Bill for everyone. This would require duty-bearers to deliver ICESCR rights and the right to a healthy environment in a way that ensures equal access to all. One approach we are considering is whether to model the equality provision on Article 2 of ICESCR or Article 14 of the European Convention on Human Rights. These provisions require the rights in the respective treaties to be secured without discrimination on grounds such as sex, race, colour, language, religion, political or other opinion, national or social origin, property, birth or other status.
The above approach would rely on LGBTI and older age being protected through the use of 'other status'. However, we are also considering whether we should specifically list LGBTI and older age as grounds for protection, given the Taskforce noted that these groups lacked the protection of an international treaty and recommended explicit protection of them in the Bill. Putting these groups specifically on the face of the Bill could help to ensure clarity of exactly who the provision is intended to protect.
Further, as we discussed in Part 4, the proposed model of incorporation would direct duty-bearers to the equality treaties in order to interpret ICESCR rights and the right to a healthy environment for those protected groups.
The intention is that this will help duty-bearers to effectively navigate the framework, embed the content of the equality treaties in delivery of ICESCR rights and the right to a healthy environment and deliver the best possible protection for rights-holders in those groups, as part of a coherent overall framework.
The equality provision will of course have to operate within the limits of the equal opportunities reservation in the Scotland Act 1998. We are also mindful of the need to consider how this will operate within the wider Equality Act framework. As a result, we will continue to consider carefully how we define the grounds of discrimination which duty-bearers must consider and are open to views on the best approach to take to this definition, within the limits of devolved competence.
14. What are your views on the proposed approach to including an equality provision to ensure everyone is able to access rights, in the Bill?
15. How do you think we should define the groups to be protected by the equality provision?
16. Do you agree or disagree that the use of 'other status' in the equality provision would sufficiently protect the rights of LGBTI and older people?
17. If you disagree, please provide comments to support your answer.
Rights for older people
Human Rights Taskforce Recommendation 6
A right for older people to be included in the statutory framework.
We are committed to building a fairer Scotland for older people. The Lived Experience Board provided evidence of older people being excluded from services and decisions affecting their lives, particularly in settings such as social care.
While there is not a specific international treaty for older people, it is clear that they should have equal access to the rights within the Bill. As set out earlier in this part, we think that the inclusion of an equality provision could help ensure they can access the rights equally, taking into account the rights in the equality treaties focusing on areas like independent living, mobility and accessibility. The proposal to ensure that human dignity can be taken into account when interpreting the rights could also assist in placing this concept at the heart of the interpretation of rights for older people. We also want to give further consideration with stakeholders as to whether the Bill framework may need to do anything more specific in relation to older people, in keeping with the intention of the Bill to protect, respect and fulfil international human rights standards and would welcome views on this.
Human Rights Taskforce Recommendation 7
An equality clause that protects and promotes the full and equal enjoyment of rights of LGBTI people.
We are committed to tackling inequality for lesbian, gay, bisexual, transgender and intersex (LGBTI) people. While there is not a specific international human rights treaty for LGBTI people, we are clear that they should have equal access to the rights within the Bill. As set out earlier in this part, the inclusion of an equality provision could help ensure LGBTI people can access rights equally, and the proposal to ensure that human dignity can be taken into account when interpreting the rights could assist in placing this concept at the heart of the interpretation of rights for LGBTI people.
We want to give further consideration with stakeholders as to whether the Bill framework could do anything more specific in this area.
18. Do you think the Bill framework needs to do anything additionally for LGBTI or older people?
This part of the consultation sets out our approach to designing the duties on those delivering devolved public functions, in relation to the rights in the Bill.
Human Rights Taskforce Recommendation 12
Provide for a sunrise clause approach leading to a duty to comply which secures protection for rights-holders whilst also allowing duty-bearers time to prepare for full commencement of the legislative framework.
Human Rights Taskforce Recommendation 13
That there be a participatory process to define the core minimum obligations of incorporated economic, social and cultural rights, and an explicit duty of progressive realisation to support the effective implementation of the framework, which takes into account the content of each right.
Human Rights Taskforce Recommendation 16
Further consider the best approach to ensure there is clarity and certainty that relevant private actors carrying out public functions, and functions connected to the delivery of rights within the framework, are within the scope of the obligations in the framework.
Fundamentally, our aim is to deliver a framework under which duty-bearers are better prepared and able to respect, protect and fulfil the rights of the people of Scotland. The duties will be critical to realising our ambitions for the Bill, as they will determine the actions required by duty-bearers across Scotland. We want the Bill to provide a set of duties that reflects the breadth of international human rights obligations. This requires providing
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