Human Rights Bill for Scotland: discussion paper

2.9 Human Rights Scheme

2.9.1 Duty to publish a Scheme

Proposals for the Bill seek to place a duty on Scottish Ministers to publish a Human Rights Scheme. As part of the Scheme, proposals include listed arrangements that the Scottish Ministers must seek to make progress against and report to the Scottish Parliament on every three years. Scottish Ministers will be required to consult with listed stakeholders on the development, review and regular reporting under the Scheme. This is intended to be a key accountability measure, through which progress to implement the framework will be demonstrated and scrutinised. Our proposals broadly align with the approach taken in the UNCRC Act 2024, which provides for a Children’s Rights Scheme, with some important differences, such as the length of the reporting period. Respondents to the consultation indicated strong support for the proposal of a Scheme, and subsequent engagement with our Implementation Working Group (IWG) has assisted in developing the detail of the proposals further.

Proposals seek to provide that Scottish Ministers must have regard to amendments to the treaties, optional protocols, amendments to optional protocols, General Comments and recommendations, Concluding Observations and views and findings under an optional protocol (whenever made) in preparing the proposal for the Scheme, so far as they consider them to be relevant. They may also have regard to any international law or comparative law that they consider to be relevant, and any other document or matter that they consider to be relevant. In addition, Scottish Ministers must consult listed consultees on the development and review of the Scheme, as well as on periodic reporting in relation to any actions that Ministers intend to take in the next reporting period.

2.9.2 Listed arrangements

It is proposed that the Bill will state that the Scheme must include specific listed arrangements, which Ministers must seek to make progress against and report on via the Scheme. These may include arrangements for Scottish Ministers to giving further and better effect to human rights (in particular the GPT requirements and the right to a healthy environment) in their decision making, undertake human rights monitoring, raise awareness of and promote human rights, support and increase public participation, work to improve access to justice and consider human rights in the Scottish Government’s budget process.

2.9.3 Making, amending and remaking the Scheme

The proposals seek to require Scottish Ministers to consult with certain listed groups and organisations when developing the Scheme, as well as when preparing reports to the Scottish Parliament in relation to any actions that Ministers intend to take in the next reporting period and when amending or remaking the Scheme. The proposed consultees include the SHRC, the EHRC, the CYPCS and any such other persons as the Scottish Ministers consider appropriate.

The aim here is to ensure that the views of key stakeholders are incorporated into the design of and reporting under the Scheme. Whilst under the proposals Ministers will be able to consult any such persons considered appropriate, providing a wide scope for engagement and consultation, there will be specific consultees listed on the face of the Bill whose views must be sought. Stakeholders indicated it was important that consultation includes those who are most vulnerable to human rights violations.

2.9.4 Reporting on and reviewing the Scheme

Proposals seek to require Ministers to review the Scheme regularly and require each report (which must be published every three years) under the Scheme to include a statement as to whether or not Scottish Ministers intend to amend the Scheme or make a new Scheme to replace it in light of the findings of their review, thereby creating a continual review mechanism. Respondents to the consultation were generally supportive of regular reporting and reviewing.

Under our proposals, reports on the Scheme must be made publicly available and would be the method by which progress on implementation of human rights would be articulated at a national level, enabling the Scottish Government to be held to account by the Scottish Parliament, stakeholders and the public.

The three-year reporting cycle of the Scheme reflects the wide-ranging nature of the rights incorporated, as well as the intention to progressively realise the rights over time. This also acknowledges the challenges that annual reporting cycles bring in terms of resource implications. Indeed, members of the IWG felt that a reporting period which is too frequent could dilute the quality of the reporting, and that adequate time should be given to ensure that reporting is done well, and that substantial and impactful action can be taken between reporting periods.

Each report on the Scheme will be required to include a summary of the actions taken by Scottish Ministers during the reporting period, as well as a summary of actions that Ministers intend to take in the next three-year reporting period.

2.9.5 Alternative approaches

2.9.5.1 The listed arrangements

We are continuing to consider carefully what listed arrangements to include, and have noted the key areas under consideration above. We do not currently plan to include the following areas:

• A direct mention of Scotland’s second National Human Right Action Plan (SNAP2) given it is specific and time limited and the opportunities to capture work on SNAP2 through reporting on the other listed arrangements.
• A listed arrangement on the development of guidance to support the Bill which was judged to be too specific, and that progress in this regard would be captured by other listed arrangements.
• A listed arrangement on plans for implementation, as work linked to implementation of the Bill would be captured by the listed arrangements in general, meaning that a specific listed arrangement on implementation plans is unnecessary and would only lead to duplication under the Scheme.
• A listed arrangement on any plans to introduce further legislation to give effect to the human rights framework set out in the Act as this would be captured by/reported on by Ministers under the listed arrangement focused on giving further and better effect to human rights in their decision making and, depending on the topic of the legislation, potentially other listed arrangements.
• A listed arrangement on monitoring and evaluation and impact assessments, as we consider these to be captured by the listed arrangements requiring Scottish Ministers to give further and better effect to human rights in their decision making, consider human rights in the Scottish Government’s budget process, and to undertake human rights monitoring.

2.9.5.2 List of consultees

We considered referencing rights-holders or the general public as one of the listed consultees for the proposed Scheme. However, we have concluded that this would not be practical. Rights-holders are difficult to define, especially as the Bill does not propose to confer direct legal rights to the incorporated human rights but rather duties to realise the incorporated rights. A general requirement to consult a potentially large and undefined group of individuals – on what may be quite specific issues – would be disproportionate, and may mean having to consult some rights-holders who are not actually impacted by a proposed change to the Scheme. Our view is that the listed consultees and others would be able to draw in the perspectives of rights-holders through their ongoing work. In addition, Ministers would be able to consult other consultees, including specific rights-holders, as they deem appropriate.

2.9.5.3 Reporting cycle

Annual reporting under the Human Rights Scheme was considered but decided against due to the nature of progressive realisation of the rights and the resource implications that annual reporting would require. Feedback from stakeholders, including through the IWG, supported this approach. The progressive realisation of economic, social and cultural rights means that progress and outcomes are expected to improve over time. Reporting every three years rather than every one year will ensure that trends, areas of improvement and challenges will be more apparent, and seek to ensure that reporting is more able to focus on long-term outcomes, rather than short-term actions.

As future timescales come into view, we will further consider the timing of reports under the Human Rights Scheme and the Children’s Rights Scheme, with the aim of ensuring that there is some alignment (recognising the different reporting cycle lengths), if possible and desirable.