Human Rights Bill for Scotland: discussion paper

1. Introduction

1.1 Ministerial Foreword

The advancement of human rights is central to this government’s missions of eradicating child poverty, growing the economy, building better public services, and tackling the climate emergency. In an era of global instability, we continue to witness the damage done when human rights obligations are flouted and fundamental rights are diminished. In uncertain times, it is the responsibility of all governments to uphold the norms, institutions and frameworks established since World War 2 to promote and protect our human rights.

Whilst Scotland has made good progress in its collective human rights journey, we know that we can go further. Our ambition is to evolve our human rights legal framework in Scotland to reflect the rights that are often the most important to people in their everyday lives, such as in areas of health, food, housing and social security. We believe there is a place in a modern-day Scotland for holistic human rights laws which connect to these rights protections at an international level. By fulfilling these ambitions, we will drive ongoing positive change towards a fairer, more equal and inclusive society.

That is why we are pleased to present this discussion paper which sets out thinking on potential provisions of a future Human Rights Bill for Scotland. The publication of this paper is an important next step towards deepening our collective understanding on how to approach the challenge of incorporating further international human rights treaties into domestic law, within a devolved context.

In recent years, the Scottish Government has worked closely with partners across the third sector, civil society, academia, and public bodies to develop proposals for such a Bill. The Advisory Group and subsequent Taskforce for Human Rights Leadership established by the former First Minister have been central to this work. Of equal importance have been the powerful reflections and insights from those who have faced historic and ongoing barriers to realising their rights, for which we are immensely grateful.

The proposals in this discussion paper set out our current thinking on how a future Bill can place these human rights at the heart of decision making across Scotland so that law, policy and frontline services are developed and delivered in a way that ensures people can increasingly have their rights realised. In particular, the proposed framework embeds an approach which aims to achieve greater equality for disabled people, racialised minorities and women.

These proposals build on earlier rights incorporation efforts in Scotland and across the UK – including the Scottish Parliament’s unanimous agreement in 2024 to incorporate the UN Convention on the Rights of the Child (UNCRC) into Scots law. They seek to embed a greater human rights culture in the delivery of public services, and increase accountability for when rights are not upheld.

In developing these detailed proposals and in looking towards a future Bill, we do not underestimate the complexities and challenges ahead.

A future Bill needs to carefully navigate the devolution settlement, particularly in relation to equal opportunities. The UK Supreme Court judgment in 2021 on the then UNCRC Bill has also impacted on the potential scope of incorporation legislation, and we will need to continue to work with the UK Government to chart a way forward here. The proposals are bold and expansive, impacting on all areas of Scottish life, and further engagement is needed with affected interests to ensure we have a full understanding of the implications. Although technical in nature, these proposals are a reflection of the values and rules-based society we continue to champion, where public institutions are accountable to the communities they serve and where improved access to fair and efficient public services helps to guarantee people’s inherent dignity.

Finally, we need to make progress on our early efforts to lay the groundwork for future legislation in a way that will empower rights-holders to claim their rights, and support duty-bearers to effectively implement a future Bill as part of a wider equalities and human rights statutory landscape. If this Bill is to lead to the truly transformative action we want of it, then it will need to be able to be effectively utilised and implemented. As part of this, proper awareness raising and capability development will need to be carefully considered in the lead up to any future commencement.

This discussion paper is not intended to be a formal consultation, and is not time limited given our intention not to introduce a Bill in the current parliamentary session. We invite all with an interest to consider carefully the information it sets out and to engage with us as we take this vital next step on Scotland’s human rights journey.

Shirley-Anne Somerville MSP

Cabinet Secretary for Social Justice

Kaukab Stewart MSP

Minister for Equalities

1.2 Terminology

Acronyms

• ASP: Act of the Scottish Parliament
• BRIA: Business and Regulatory Impact Assessment
• CAT: United Nations Convention against Torture
• CESCR: Committee on Economic, Social and Cultural Rights
• COSLA: Convention of Scottish Local Authorities
• CEDAW: Convention on the Elimination of All Forms of Discrimination Against Women
• CRPD: Convention on the Rights of Persons with Disabilities
• CYPCS: Children & Young People’s Commissioner Scotland
• ECHR: European Convention on Human Rights
• EHRC: Equality and Human Rights Commission
• EA 2010: Equality Act 2010
• FMAG: Former First Minister’s (Nicola Sturgeon MSP) Advisory Group on Human Rights leadership
• FPAC: Finance and Public Administration Committee
• GPTs: Group Protection Treaties (CEDAW, ICERD and CRPD)
• HRA 1998: Human Rights Act 1998
• ICCPR: International Covenant on Civil and Political Rights
• ICERD: International Convention on the Elimination of All Forms of Racial Discrimination
• ICESCR: International Covenant on Economic, Social & Cultural Rights
• IWG: Implementation Working Group
• LGBTQI+: Lesbian, Gay, Bisexual, Transgender, Queer, Intersex Plus
• MSP: Member of the Scottish Parliament
• NPF: Scotland’s National Performance Framework
• OHCHR: Office of the United Nations High Commissioner for Human Rights
• PSED: Public Sector Equality Duty
• SHRC: Scottish Human Rights Commission
• SNAP2: Scotland’s Second National Action Plan on Human Rights
• SPCB: Scottish Parliamentary Corporate Body
• SPSO: Scottish Public Services Ombudsman
• SSI: Scottish Statutory Instrument
• Taskforce: National Taskforce for Human Rights Leadership
• UDHR: Universal Declaration of Human Rights
• UN: United Nations
• UNCRC: United Nations Convention on the Rights of the Child
• UNCRC Bill: United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill
• UNCRC Act 2024: United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024
• UNSR: United Nations Special Rapporteur

KEY TERMS

Core Bill duties: ICESCR Compliance Duty, ICESCR Consideration Duty, Equality Duty and Group Protection Duty and Healthy Environment Duty.

ICESCR core requirements: The core economic, social and cultural rights in ICESCR to be incorporated by the Bill, such as the rights to an adequate standard of living (including adequate housing, food and water), health, social security, education, and cultural life.

GPT requirements: The rights in the Group Protection Treaties (ICERD, CEDAW and CRPD) to be incorporated by the Bill. Those rights span the full spectrum of civil, political, economic, social and cultural rights for the groups the GPTs are designed to protect.

Minimum standards (ICESCR core requirements): The baseline standards that duty-bearers will have to meet in relation to the ICESCR core requirements when delivering public functions. The aim is that these standards will be informed by a participatory process after the Bill receives Royal Assent.

Private actors: Any actor carrying out devolved functions of a public nature, which includes functions carried out under a contract or other arrangement with a public authority. This could include business, social enterprise, those who are self-employed and voluntary sector organisations.

Progressive realisation (ICESCR core requirements): How duty-bearers are expected to continue to realise the ICESCR core requirements over time, by ensuring there are concrete steps in place, by utilising the maximum available resources and by ensuring that they do not take actions that row back on the rights.

1.3 Purpose of Discussion Paper

This discussion paper sets out the Scottish Government’s current thinking on a potential new Human Rights Bill for Scotland. The aim of the paper is to consolidate the extensive work to date undertaken by government and stakeholders, facilitate further engagement with stakeholders on this, and continue to work through the implications of further human rights incorporation. Ministers have committed to introducing a Bill in the next Parliamentary session (subject to the outcome of the 2026 election). This paper is not intended to commit government to any specific policy positions on Bill proposals but rather to surface collective thinking and continue with further engagement with all stakeholders. Specifically, the proposals:

• build on the Scottish Government’s 2023 public consultation on the Bill and the responses received to that, alongside the extensive engagement with rights-holders and people who face historic and ongoing barriers to realising their rights, and with civil society organisations and public bodies (more detail on engagement work can be found in Annex A);
• reflect some of the challenges and limitations outlined in the Policy Context section, as well as greater or lesser levels of detail depending on the extent to which policy has been fully developed and tested;
• explain the extent of policy thinking and the rationale for our preferred approach where we have one, including reflecting on stakeholder feedback;
• outline alternative approaches we have considered and explain why at this stage we have decided not to pursue them; and
• indicate where we plan to develop policy further and how we intend to approach engagement with stakeholders.

Core policy sections of this document cover:

• Treaties and Treaty Requirements
• Interpretation of Treaty Requirements
• ICESCR Requirements
• Group Protection Treaty Requirements
• Right to a Healthy Environment
• Remedies
• Legislation and Compliance Questions
• Oversight Bodies
• Human Rights Scheme
• Reporting by Listed Authorities
• Modification of the functions of the Scottish Human Rights Commission and the Children and Young People’s Commissioner Scotland
• Guidance
• Commencement

The document also sets out our initial thinking in relation to future implementation of a framework, as well as a summary of next steps towards developing a future Bill.

Whilst this document is not intended to support a formal consultation exercise, we welcome views and engagement on what it sets out. Please get in touch with Scottish Government officials at HumanRightsOffice@gov.scot if you wish to share views or have any questions on what is contained in this document.

1.4 Policy Context

1.4.1 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 (CAT) also sets out clear expectations around the prevention of inhumane and degrading treatment.

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 graphic below outlines the treaties ratified by the UK and the dates of their ratification.

The UK was instrumental in developing the European Convention on Human Rights (ECHR) and the first to ratify it in 1951. In 1998, the Human Rights Act (HRA 1998) 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 ECHR, and placed duties on public bodies to act compatibly with these rights. 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 (EA 2010), which is generally a reserved matter for Westminster, has consolidated a number of different pieces of anti-discrimination legislation and now forms the basis of equality law in the UK.

1.4.2 Human Rights and Devolution

The Scotland Act 1998, which established the Scottish Parliament, builds human rights protections directly into the devolution settlement. It requires all legislation of the Scottish Parliament to be ECHR compliant and, as such, allows for Acts of the Scottish Parliament which are incompatible with ECHR rights to be overturned. The Scotland Act 1998 also requires Scottish Ministers 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. Building on this, the Scottish Human Rights Commission (SHRC) was established in 2008, as Scotland’s National Human Rights Institution to promote and protect human rights. Furthermore the recent passage of the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act (UNCRC Act 2024) by the Scottish Parliament incorporated the UNCRC into Scots law.^[1] 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’.^[2] Drawing on all of the above we have worked with key stakeholders to support the development of a collaborative Scottish National Action Plan (SNAP) to advance implementation of rights and build a culture of rights across Scotland.^[3]

1.4.3 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. 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”. The FMAG reported in December 2018, recommending an Act of the Scottish Parliament (ASP) which provides human rights leadership developed through a public participatory process and driven by the establishment of a new National Taskforce.^[4]

The then First Minister welcomed the findings of FMAG, and a Taskforce was set up to progress its 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 the following four international human rights treaties into Scots law:^[5]

• ICESCR^[6]
• CEDAW^[7]
• ICERD^[8]
• 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 EA 2010 and provide equal access to the rights contained within the Bill for everyone, including LGBTQI+ people^[10]; and include a right for older people. The Taskforce also considered issues around access to justice, capacity building, participation and implementation.

1.4.5 Developing proposals for incorporation

Following the publication of the Taskforce’s recommendations, and the 2021 Scottish Parliamentary election, the Scottish Government committed to bringing forward a Human Rights Bill in our Programme for Government. A consultation was published in 2023 which set out proposals for how this should be taken forward.^[11] 397 responses were received from a wide range of stakeholders and the general public. An independent analysis of consultation responses was published in January 2024.^[12]

The Bill was originally due to be introduced in the 2023-24 Parliamentary year. However, the decision was taken to postpone to the next Parliamentary session. Constraints on devolved competence regarding rights incorporation, highlighted by the UK Supreme Court judgment on the UNCRC Bill in 2021^[13], have impacted on how the Scottish Government has had to approach the design of the duties proposed for the Bill; for example, the compatibility duty in the UNCRC Bill (now Act) was restricted to apply only where a public authority delivers devolved functions conferred by, or under, ASPs, SSIs or common law powers. Interpretations of the Supreme Court’s decision on section 28(7) of the Scotland Act 1998 therefore limited the applicability of the UNCRC Act’s duties across devolved policy areas, and we have heard directly from duty-bearers about the challenges this presents for understanding when the section 6 compatibility duty in the UNCRC Act 2024 applies and for delivering the original policy intentions. So, in light of the election of a new UK Government in July 2024, Ministers decided to use the remainder of the 2021-2026 Parliamentary session to work collaboratively with stakeholders to further develop proposals for the Human Rights Bill, with the intention of taking forward legislation in the next Parliamentary session following the Scottish Parliamentary election in May 2026.

The proposal for a Bill is a key component of the Scottish Government’s Equality & Human Rights Mainstreaming Strategy^[14] which will set out an overarching framework for embedding equality and human rights across the public sector. It sits alongside a range of actions to advance equality, inclusion and human rights in Scotland including work to improve the operation of the Public Sector Equality Duty (PSED) in Scotland; implement the UNCRC Act 2024 and realise children’s rights; and advance equality for women, disabled people, racialised minorities, LGBTQI+ people and older people.

1.5 Summary of Bill Proposals

The overarching aim of the Human Rights Bill is to further advance a human rights culture within Scotland. To do this, the Bill will seek to give domestic legal effect to international economic, social, cultural rights and environmental standards, as well as rights relating to women, disabled people and racialised minorities, in a way which leads to improved outcomes for people in their everyday lives. The Bill will aim to support people to access remedy where their rights are not upheld.

The Bill is intended to improve how law, policy and frontline services are developed and delivered, by placing the rights that it incorporates at the heart of decision-making in a way that supports the Scottish Government’s key priorities of eradicating child poverty, growing the economy, tackling the climate emergency and ensuring high quality and sustainable public services. In particular, it aims to bring an increased focus to the realisation of economic and social rights, which are key to addressing inequality and tackling poverty.

Incorporation of treaties into domestic law will create a requirement for duty-bearers in Scotland (i.e. those delivering public services, including relevant private actors) to embed the treaty rights in the delivery of their functions, and will mean that rights-holders can seek remedy when these rights are not fulfilled. UN Committees^[15] and our National Human Rights Institution^[16] have recommended the incorporation of human rights treaties into domestic law, to help ensure accountability for human rights realisation and to promote widespread culture change driven by a backstop of legal protection and judicial enforcement.

Our proposals in relation to access to justice seek to build on the strengths of Scotland’s justice system, which has always been responsive and adaptive to the development of new frameworks for the protection of individual rights, including the HRA 1998 and now the UNCRC Act 2024. Our proposals recognise the unique constitutional role played by courts and tribunals in interpreting and applying domestic legislation; they also recognise that adjudicating on the economic, social and cultural rights protected by the Bill may be viewed as an unfamiliar role for courts. Proposals therefore seek to respect the existing balance and separation of powers between courts, Government and Parliament.

Specifically, the Bill seeks to:

• Incorporate the following four UN human rights treaties into Scots law, in a way that balances ambition, accessibility and coherence while effectively navigating legislative competence complexities:
  • ICESCR which contains the rights tan adequate standard of living (including adequate housing, food and water), health, work, social security, education, and culture;
  • CRPD which contains specific protections for disabled people;
  • CEDAW which contains specific protections for women and girls; and
  • ICERD which contains specific protections for racialised minorities.
• Recognise and include the right to a healthy environment.
• Include provision to allow for duty-bearers, courts and tribunals to read, apply and interpret the rights in line with international human rights frameworks and the concept of dignity.
• Place duties on Scottish Ministers and those delivering devolved public functions in Scotland to give effect to the ICESCR core requirements^[17], initially via a Consideration Duty and in time, a Compliance Duty. When delivering the ICESCR core requirements, certain duty-bearers will be required to consider how to deliver them without discrimination, including with regard to a range of characteristics, underpinned by the international framework, via an Equality Duty.
• Require Ministers to establish and run a participatory process to help inform domestic standards for the minimum standards of the ICESCR core requirements, taking into account already existing international standards.
• Place a duty (known as the Group Protection Duty) on Scottish public authorities, including Scottish Ministers, when exercising certain functions, to build consideration of the rights in the Group Protection Treaties (GPTs)^[18] into decision making.
• Provide for remedies in the event of a breach of the core Bill duties^[19].
• Require that existing legislation must be read and given effect in a way that is consistent with compliance with the ICESCR core requirements, and members of the Scottish Parliament must provide a statement of compliance on or before introducing a Bill on the extent to which it is consistent with ICESCR core requirements.
• Establish requirements for listed oversight bodies to, in exercising their functions, take steps to support relevant public authorities in complying with the core Bill duties, and modify the functions of the Scottish Public Services Ombudsman to enhance their human rights remit.
• Require Scottish Ministers to establish a Human Rights Scheme setting out the arrangements to ensure they comply with their duties in the Bill, and to secure better or further effect of the rights in the Bill.
• Place a Planning and Reporting Duty on listed authorities requiring them to report on actions taken and planned to implement the duties in the Bill.
• Modify the powers of the SHRC and the CYPCS to strengthen their human rights remit.
• Require Scottish Ministers to publish statutory guidance to support the delivery of the Bill.