Human Rights Bill for Scotland: discussion paper

2.8 Oversight Bodies

2.8.1 Human Rights Oversight Duty

As set out in our consultation, we want to build a multi-institutional approach to improve access to justice; one that embeds a culture of human rights-based thinking across the public sector and puts human rights at the heart of decision-making. Justice is both more effective and more accessible when non-judicial routes to remedy exist alongside judicial routes.

As such, we are proposing to increasingly harness relevant oversight bodies, by placing a human rights oversight duty on such bodies. Relevant oversight bodies are those who deal with escalated complaints, and wider scrutiny bodies. We propose to require oversight bodies to take steps to support those public authorities which they oversee, and who are subject to the core duties in the Bill, to fulfil those core duties. The aim is to maximise the contribution that these oversight bodies can make to embedding a human rights culture across public services. Stakeholders and respondents to the consultation have been broadly supportive of proposals to enhance the human rights remit of relevant oversight bodies, and the design of the proposed oversight duty has been informed by feedback from stakeholders, including oversight bodies themselves.

We recognise that the proposal to mainstream human rights fulfilment by building it into the functions of existing oversight bodies is an ambitious step change. For it to be effective, we propose building in time for oversight bodies to prepare for this enhanced role. As such, it is our intention that this oversight duty (and related proposals mentioned in this section) would come into force at the same time as the Bill’s ICESCR Compliance Duty. We propose for the oversight duty to apply in respect of the existing and future functions of oversight bodies. In a general sense, the human rights oversight duty would ask bodies to apply a human rights lens to their oversight functions. The intention is to make compliance with the core duties in the Bill (and, thus, fulfilment of those human rights), inseparable from the everyday issues oversight bodies deal with.

We recognise the ambition of these proposals and the importance of ensuring they are made effective through realistic implementation. The oversight duty has therefore been designed to provide a degree of flexibility and discretion to oversight bodies regarding exactly how they exercise their oversight duty in this supporting role. This approach will help to ensure such a function is workable in practice and can make the biggest practical difference to supporting duty-bearers. It is intended to enable oversight bodies, at a strategic level, to adapt the application of this oversight duty to the circumstances at hand, focussing on the most relevant human rights areas, and recognising the range of other statutory responsibilities that oversight bodies have. This would enable the oversight bodies to target the oversight duty in the most appropriate and proportionate way.

In carrying out this duty, oversight bodies would not be required to look at those human rights not relevant to their remit, nor look at any wider activities of duty-bearers not relevant to an oversight body’s remit. They would not have to exercise this oversight duty in respect of every right in the Bill, nor every duty in the Bill, nor every duty-bearer, nor in respect of every single function they have, nor every complaint or activity they engage in. In this way, the duty is designed to be proportionate to the resources, capacity, remit and other statutory responsibilities of oversight bodies. It is our vision that, gradually, capacity to understand and support fulfilment of the core duties in the Bill would grow and, thus, the meaningful impact of the oversight duty would grow too.

Oversight bodies would also have flexibility in terms of what role they could play when overseeing duty-bearers. The following illustrative examples are provided to show the range of potential approaches that could be taken by an oversight body on the spectrum between accountability and support:

Accountability role

• Assess whether the bodies they oversee have sufficiently considered their core duties
• Assess whether the bodies they oversee are at risk of not meeting their core duties
• Assess whether the bodies they oversee have, in the view of the oversight body, breached their core duties
• Make conclusions to the effect that the body has not sufficiently considered, is at risk of breach of, or has breached, a core duty in respect of certain rights when taking certain actions (though this would not constitute a legal determination)

Support/improvement role

• Recommend to the bodies they oversee how they can improve their fulfilment of core duties
• Make suggestions about how the bodies they oversee can build the human rights in the Bill into their decision making
• Make suggestions about actions the bodies they oversee can take to progressively realise the rights in the Bill
• Make suggestions about how the bodies can build the human rights in the Bill into their complaints processes (where oversight of complaints handling is part of a body’s remit)
• Whilst the duty would be mandatory, we are not proposing to mandate a particular approach to meeting it, so it would be up to the body as to how they approach meeting the duty. That said, to assist with relative consistency and encourage meaningful exercise of the role, we propose that the Scottish Ministers could issue guidance in relation to the oversight duty.

2.8.2 Listed Bodies

Regarding the category of ‘escalated complaints bodies’, we are proposing to specifically list bodies operating in Scotland, where:

• it is within devolved competence to confer functions on them;
• they would deal with complaints relevant to the rights and duties in the Bill; and
• they would (routinely) deal with the substance of a complaint against proposed duty-bearers after, or instead of, those complaints being dealt with by the subject of the complaint itself.

Regarding the category of ‘scrutiny bodies’, we are proposing to specifically list bodies operating in Scotland, where:

• it is within devolved competence to confer functions on them;
• the remit of the body has particular relevance to the rights and duties in the Bill; and
• the body looks relatively holistically at the policies/practices of duty-bearers against certain criteria or standards, and can make some form of recommendations to improve policies/practices.

We propose a delegated power to add or remove bodies to the list of oversight bodies. It is our intention that any delegated powers would be accompanied by appropriate parliamentary oversight, and be accompanied by consultation with relevant oversight bodies given the direct impact on them (as well as to reflect that certain oversight bodies are accountable directly to Parliament).

2.8.3 Collaboration by oversight bodies and avoidance of duplication

To maximise efficiencies and effectiveness in this system, we propose to confer a power on listed oversight bodies to collaborate together in the exercise of their oversight duty, as well as with such other bodies as the oversight body considers appropriate. The SPSO would be excepted from this ability to collaborate to avoid any conflict of interest (as they deal with complaints about potential oversight bodies). Specific proposals for the SPSO are covered later in this section.

This collaboration power would enable consultation, joint acting, co-operation and assistance between bodies. This is designed to improve the efficiency and effectiveness of the overall access to justice landscape. We want to enable collaboration because we want the oversight framework that would be created by the Bill to be able to adapt and deal with the circumstances at hand, as well as potential future scenarios oversight bodies may need to collaborate with one another on. Also with a view to maximising efficiency and effectiveness in such a multi-institutional model, we propose to place a non-duplication requirement on oversight bodies to avoid unnecessary duplication with other relevant bodies (i.e. other oversight bodies and the SHRC and the CYPCS).

2.8.4 Reporting by oversight bodies

Given the flexibility we propose to build into this oversight duty, accountability and transparency about its exercise is important. As such, we propose to require oversight bodies to report, every 3 years, on actions taken in the previous reporting period to fulfil the oversight duty and actions they plan to take to meet the oversight duty in the next reporting period. This reporting requirement would cover what oversight bodies themselves have done (and will do) to meet the oversight duty (rather than what those they oversee have done).

To support accountability and transparency (as well as to support executive and legislative awareness of the operation of the oversight duty), we are proposing to require oversight bodies to send their reports to both Scottish Ministers and the Scottish Parliament. We would ensure that this did not affect the operational independence of oversight bodies.

To reduce the administrative burden, we are proposing that oversight bodies will be able to combine their reports with other reports – for example, any oversight bodies who are also subject to the general planning and reporting duty on public bodies (as outlined in the ‘reporting by listed authorities’ section) would be able to combine these two planning and reporting requirements into a single report.

We have listened to feedback about reducing the administrative burden on public authorities and, to provide further agility in fulfilling the duty to report on the oversight duty, we propose that oversight bodies should be able to combine their reports with other bodies.

2.8.5 Specific provision for the SPSO

We are proposing to provide a power for the SPSO to undertake own-initiative investigations where an issue is relevant to human rights. This will mean they could investigate an issue without having first received a complaint, which could help with early resolution of issues and reduce the burden on rights-holders.

The intention is to enable the SPSO to undertake both wider investigations (where no complaints has been received), and extended investigations (extending from an individual complaint). The SPSO would only be able to conduct an own-initiative investigation if, in the view of the SPSO, the matter related to whether a duty-bearer was not considering the core duties in the Bill or was at risk of not complying with those duties, though the investigation could also focus on other elements already relevant to the SPSO’s remit – e.g. maladministration (recognising there will inevitably be links between maladministration and human rights issues).

To avoid duplication, we are proposing that the SPSO will be required to not unnecessarily duplicate the inquiries/investigations of other oversight bodies and the SHRC and the CYPCS when undertaking these own-initiative investigations. We also propose that the SPSO would be required to consult the SHRC (in all cases) and the CYPCS (where the investigation relates to a child) before formally undertaking an own-initiative investigation. Finally, we are also proposing to enable the SPSO to consult – before undertaking an own-initiative investigation – other oversight bodies they deem appropriate, to again help avoid unnecessary duplication. For any consultation, the intention is that the SPSO would only be required to consult once, and before an investigation starts.

We are proposing that the SPSO would be required to lay criteria for own-initiative investigations before the Scottish Parliament (which mirrors how the SPSO lay complaints standards). This would ensure Parliamentary oversight and encourage consistency with other procedures, which Parliament already has experience of.

We are also proposing to remove existing restrictions on the SPSO sharing information. That would be aimed at enabling information sharing with the SHRC, the CYPCS and other oversight bodies for the purposes of the human rights oversight duty. The intention here is to help human rights issues be resolved more quickly and effectively.

To improve the accessibility of the complaints system, we propose to allow the SPSO discretion in terms of the format they receive complaints in (such as allowing them to receive oral complaints).

2.8.6 Alternative approaches

2.8.6.1 More prescriptive and rigorous requirement on oversight bodies

A more rigorous and less flexible approach was considered whereby relevant oversight bodies would be required to assess whether the bodies they oversee are taking, or have taken, appropriate steps to meet their obligations in the Bill. However, we engaged with oversight bodies and noted their feedback that this approach was overly prescriptive, that it created a requirement for a level of expertise that bodies might not be able to deliver, and that it could expose them to risk should their assessments be subject to challenge. We therefore considered that this approach could lead to less effective rights protection in practice, due to the implementation challenges it would give rise to.

2.8.6.2 Requiring at least certain oversight bodies to inform the SHRC, the CYPCS and the SPSO of systemic issues

Further to what was outlined in the 2023 consultation, an option was considered for oversight bodies to have to inform the SHRC and relevant other organisations of systemic human rights issues. An option was also considered to require certain bodies with formal investigation/inquiry powers to inform and/or consult the SHRC, the CYPCS and the SPSO when undertaking these investigations/inquiries.

However, after exploration with oversight bodies and the SHRC, the CYPCS and the SPSO, it was concluded that neither approach would be proportionate for the bodies notifying/consulting, and the bodies being notified/consulted. The proposed collaboration power is, instead, designed to create a more flexible and adaptable approach, which can be tailored for relevant organisations and deal with the circumstances at hand.

2.8.6.3 Make the SPSO recommendations binding

Some civil society stakeholders favoured binding recommendations for the SPSO to allow stronger enforcement. Following engagement with the SPSO, we consider that the non-binding system of recommendations should remain. We believe that non-binding recommendations allow more flexibility and constructive working relationships with duty-bearers.

Binding recommendations could also risk legal action (for the SPSO, core duty-bearers and rights-holders), whether in terms of raising or defending claims, and it is considered that this would be counterproductive to the policy objective of helping to embed a human rights culture in duty-bearers. Generally, non-binding recommendations are the established practice of UK Ombuds so it is considered undesirable to change that through this Bill.

2.8.6.4 Do not include a power for the SPSO to be able to conduct own-initiative investigations

Some civil society stakeholders have expressed opposition to the SPSO being able to undertake own-initiative investigations, citing potential confusion, lack of clarity and conflict with the powers of other bodies, such as the SHRC and the CYPCS.

We consider that the conflict point is dealt with by our consultation/non-duplication proposals.

Having engaged with the SPSO, we also believe that a power for the SPSO to be able to conduct own-initiative investigations will expand the capacity in the system to investigate systemic human rights issues, and be complementary to investigatory powers of other bodies. We believe it would allow the SPSO to delve deeper into areas where they receive few, if any, complaints or where complaints suggest there are wider issues, allowing the SPSO to better drive systemic, and more timely, public sector improvement (in a way relevant to human rights).

2.8.6.5 Front line complaints handling

In the consultation, we outlined that we were exploring with the SPSO scope for them to update their model complaints handling procedures so that they reflect the obligations in the Bill. We have continued to explore with the SPSO and will continue to do so, noting that the SPSO has an important existing independent role – and existing legislative functions – in publishing complaints handling procedures, alongside monitoring and supporting best practice in complaints handling in relation to many devolved areas. We therefore do not consider any legislative provision is necessary here. We note that the SPSO has recently consulted on an update to their Statement of Complaints Handling Principles.^[51] Furthermore, we also note that to support implementation of the UNCRC, the SPSO has also created Child Friendly Complaints Handling Principles^[52] and Child Friendly Complaints Handling Process Guidance.^[53]

2.8.7 Further considerations

The final composition of the listed oversight bodies (covering both escalated complaints bodies and scrutiny bodies) remains under development and will be subject to further engagement. We have engaged – and will continue to engage – with a range of bodies including (but not limited to) the SPSO, the Care Inspectorate, Healthcare Improvement Scotland, the Mental Welfare Commission, police oversight bodies, various HM Inspectorates, Environmental Standards Scotland, Audit Scotland and the Scottish Housing Regulator. We will continue to test our developing thinking with potential oversight bodies to better understand the workability and implications of proposals.

We will also undertake additional analysis and engagement to establish the preferred approach to collaboration between the SPSO, the SHRC and the CYPCS.