Human Rights Bill for Scotland: discussion paper

2.11 Modification of the Powers of the Scottish Human Rights Commission and the Children and Young People’s Commissioner Scotland

2.11.1 Overall approach

We are proposing to increase the powers of the SHRC and the CYPCS, so that these bodies can effectively support increased legal and practical accountability for human rights delivery in Scotland. There has been consistent, broad support across civil society, local authorities, public bodies, scrutiny bodies and individuals for the SHRC and the CYPCS to be given enhanced powers under the Bill. We will continue to engage with relevant organisations, including the SHRC and the CYPCS, as we further develop and refine our proposals.

2.11.2 Powers of the SHRC

2.11.2.1 New investigation power

We are proposing to provide the SHRC with a widely drawn, flexible investigation power to help address systemic human rights issues. The SHRC currently possesses an inquiry power, but this has never been used in practice. A challenge the SHRC has highlighted is that it cannot use this existing power to investigate a single duty- bearer (unless it is the only one of its kind). The corresponding scale and scope of a potential inquiry is therefore considered to be too unwieldy to work well in practice. Our proposal is, therefore, to remove this restriction in relation to looking into single duty-bearers, but as part of a more broadly drawn investigatory power which would replace the inquiry power and which could be tailored effectively to the circumstances at hand. Investigations could range from something light touch and informal through to something more substantive and structured, in contrast to the existing inquiry power which is more formal and intensive in nature.

The investigation power we propose will enable the SHRC to tackle systemic human rights issues in a flexible, proportionate and effective way, tailored as the SHRC considers appropriate under the circumstances. We are proposing that the power consists of the following technical features:

• Investigations could be conducted in relation to a single duty-bearer and multiple duty-bearers (and the SHRC would not have to investigate all duty-bearers of that kind);
• The investigation power could be used to advance and uphold both the rights and duties in the Bill and other rights and duties under their general duty (so including in relation to civil and political rights protected by the HRA 1998);
• Investigations would not look into individual cases or complaints (as per the existing inquiry power): this would remain the preserve of the SPSO and other complaints bodies;
• The SHRC would be required to draft and share terms of reference with the subject(s) of an investigation (as per the existing inquiry power);
• The SHRC would have a power to require relevant evidence to be provided when conducting an investigation, including oral evidence (as per the existing inquiry power);
• The SHRC would have powers of entry, inspection and interview in relation to places of detention (as per the existing inquiry power);
• The SHRC would be required to draft and publish a report into an investigation, and this may include findings or recommendations (though the SHRC does not have to identify any recommendations);
• Any recommendations would remain non-binding;
• The investigation would not have to be conducted in public – we think this would be too onerous for more frequent, light touch investigations;
• The prohibition on allowing the SHRC to question any findings of courts and tribunals as part of the investigation (as per the existing inquiry power) would be retained. This is consistent with the wider intention of the multi-institutional model within which only courts can provide definitive determinations of whether the duties in the Bill have been met in particular circumstances;
• Courts and tribunals would be able to consider any findings from such an investigation.

2.11.2.2 Expanded power to raise and intervene in civil legal proceedings under the Bill

We are proposing to provide an expanded power for the SHRC to raise and intervene in civil legal proceedings. The SHRC currently holds a broadly drawn power to intervene in relevant civil court proceedings and has gained a more focussed power to raise and intervene in proceedings via the UNCRC Act 2024. We wish to extend these powers to allow the SHRC to raise and intervene in civil proceedings relating to the duties in the Human Rights Bill. This is designed to strengthen the ability of the SHRC to address systemic issues through the courts where that is the best route to do so.

2.11.2.3 Enhancing the ability of the SHRC to provide advice

We are proposing to provide an enhanced ability for the SHRC to provide advice. The SHRC may currently provide advice or guidance for the purposes of its general duty, or assist any other person in the exercise of its functions. The SHRC is, however, prevented from providing assistance to, or in respect of, any person in connection with any claim or legal proceedings to which that person is, or may become, a party, excepting proceedings brought or intervened in by the SHRC in relation to the UNCRC Act 2024. In practice, we understand this is interpreted restrictively, since many issues could potentially involve legal proceedings.

2.11.2.4 Supporting courts

We are proposing to provide an ability for the SHRC to support courts in delivering structural remedies for breaches of Bill duties. This would mean the SHRC may give a court or tribunal such assistance as the court or tribunal may request in connection with civil proceedings relating to the Human Rights Bill.

It is recognised that the courts already have a range of powers to issue remedies for breaches of the duties proposed for the Bill. However, because these economic, social and cultural rights are to be incorporated into domestic law for the first time, we recognise that the courts may need to use their existing powers in new and innovative ways, particularly in relation to ‘structural interdicts’. We consider that the SHRC may be able to support the courts in this task, and this could help strengthen the multi-institutional model of rights protection.

We are also proposing to mirror section 34 of the UNCRC Act 2024, so that where a compliance question arises in any proceedings before a court or tribunal, intimation of that is to be given to the SHRC (as well as the Lord Advocate).

2.11.2.5 Amending the SHRC’s general duty

We are proposing to explicitly include the incorporated rights in the Bill under the SHRC’s general duty to promote human rights. The rationale is to appropriately connect the general duty to the rights to be incorporated by the Bill.

We are also proposing to add the UNCRC requirements incorporated by the UNCRC Act 2024 to the SHRC’s general duty to promote human rights, for reasons of completeness and consistency. In practice, it is recognised that the CYPCS mainly looks at human rights issues as they specifically relate to children. This addition to the SHRC’s remit is not designed to change this – ultimately, which organisation looks at what is an operational matter between the SHRC and the CYPCS. The SHRC also has an existing duty not to duplicate its work with other bodies.

Powers and roles for the SHRC in relation to the Human Rights Scheme (section 2.9), the Planning and Reporting Duty (2.10) and guidance (section 2.12) are covered in other sections.

2.11.3 Powers of the CYPCS

2.11.3.1 Expanded power to raise and intervene in civil legal proceedings under the Bill

We are proposing to provide an expanded power for the CYPCS to raise and intervene in civil legal proceedings. The CYPCS gained a more focussed power to raise and intervene in proceedings via the UNCRC Act 2024. We want to extend these powers to allow the CYPCS to raise and intervene in civil proceedings relating to the duties in the Human Rights Bill. This is designed to strengthen their ability to address systemic issues through the courts where that is the best route to do so.

2.11.3.2 Remove restrictions on conducting investigations

We are proposing to remove certain restrictions on the CYPCS conducting investigations, to allow them to conduct investigations in broader circumstances. The CYPCS currently holds a power to carry out investigations. However, this power is subject to a non-duplication requirement, which means that the CYPCS is unable to investigate any issue that falls within the remit of another body even though the body is not intending to investigate the matter. We are therefore proposing to amend the current investigation power so that the CYPCS should seek to ensure, so far as practicable, that in any activity they undertake, they do not duplicate unnecessarily any statutory activity undertaken by another body (but the CYPCS could still investigate where another body could, in theory, investigate). The proposed change to the investigation power would apply to any issue the CYPCS investigated. It would not be restricted to the rights and duties in the Human Rights Bill.

We are also proposing that courts and tribunals would be able to consider any findings from an investigation conducted by the CYPCS, mirroring the approach in relation to the SHRC.

Furthermore, to achieve consistency with the SHRC, the intention is to explicitly allow the CYPCS to consult, act jointly with, co-operate or assist any other person in exercising the CYPCS’s functions.

2.11.4 Alternative approaches

2.11.4.1 Different approach to investigation and inquiry powers (the SHRC)

We have considered creating a new light-touch investigation power and modifying the SHRC’s current inquiry power to make it more usable – thereby having two separate powers. In this scenario, the investigation power would be used for a lighter touch, more informal look into an issue, while the reframed inquiry power (removing the restriction on looking at individual duty-bearers) would have been used for a more formal and in-depth look into an issue.

However, building on the experience of the Northern Ireland Human Rights Commission, and to allow for greater simplicity and flexibility, we think that a single power is more appropriate. The power we propose could be tailored by the SHRC as it considers appropriate, allowing it to be adapted to a wide range of situations and issues.

2.11.4.2 Compelling information (the SHRC)

A power to request and compel information (outside of investigations/inquiries) has also been considered. However, rather than providing a specific ‘standalone’ power here, we propose that an ability to compel information is an element of the enhanced investigation power described earlier. This approach is in line with the powers of other UK NHRIs.^[54] We consider this will strike an appropriate balance by ensuring that the power is exercised within a clear structure (i.e. as part of the investigation power), providing transparency and accountability.

2.11.4.3 Explicit mirroring of the SHRC proposals for the CYPCS

We have considered explicitly mirroring the proposed SHRC powers with those for the CYPCS. However, we wish to work with the existing statutory frameworks for these bodies and, as the enabling legislation for the CYPCS and the SHRC is different, we are of the view that mirroring each power is not practical or desirable. Instead, we have focussed on looking at individual powers and functions and seeking to strengthen these, where appropriate.

2.11.5 Further considerations

The Finance and Public Administration Committee (FPAC) published its report into Scotland’s Commissioner Landscape in September 2024. Further to its recommendation, the Parliament has approved a moratorium on extending the powers of existing Scottish Parliamentary Corporate Body (SPCB) supported bodies, such as the SHRC and the CYPCS, until a Parliamentary review has been carried out on the current structure, to be completed by June 2025 and conducted by a cross-parliamentary committee.

The SPCB Supported Bodies Landscape Review Committee was established in December 2024. The Committee has been asked by the Parliament to review and develop a framework for SPCB supported bodies and is expected to sit until 30 September 2025. The Scottish Government will carefully consider any recommendations made in this Parliamentary review, including how they may interlink with Human Rights Bill proposals – including the proposed powers for both the SHRC and the CYPCS, as described here.