Human Rights Bill for Scotland: discussion paper

2.12 Guidance

2.12.1 Statutory guidance

Implementation of the Bill will require a mixture of statutory and non-statutory guidance documents to support different areas of the Bill. There was strong consensus from respondents to the consultation for the need for clear and accessible guidance to aid effective implementation of the Bill. Subsequent engagement with the IWG on the development of guidance has helped to develop proposals further.

We propose to include a power in the Bill for Scottish Ministers to produce statutory guidance to support the delivery of the duties in the Bill; to support listed authorities to understand their reporting requirements in relation to the Bill’s planning and reporting duty; as well as statutory guidance in relation to the human rights remit for escalated complaints bodies and scrutiny bodies and their specific requirement to report on the implementation of this additional human rights remit.

Scottish Ministers will be required to consult the SHRC and to consult with others they think appropriate before issuing statutory guidance.

2.12.2 Non-statutory guidance

Whilst non-statutory guidance is not set out or referenced in legislation, Scottish Ministers remain committed to producing a suite of non-statutory guidance to promote understanding of the rights in the framework, to advise public authorities on how to take a human rights-based approach, as well as providing information and guidance for rights-holders. Statutory guidance has to be tied to the text of the Act. The use of both statutory and non-statutory guidance, therefore, gives the Scottish Government some flexibility in being able to use the statutory guidance to provide a supportive framework to describe and explain the terms and duties in a future Act, whereas it can use the non-statutory guidance to provide wider information, such as specific case studies or examples of best practice. Non-statutory guidance might be used to furnish duty-bearers or others with information including steps they could take to embed a human rights approach in the development of services, policies, strategies and actions; and budgetary decision-making. The development and utilisation of both statutory and non-statutory guidance will also be supported by wider implementation work linked to the Bill such as capability-building work and information and awareness-raising activity.

2.12.3 Alternative approaches

2.12.3.1 List of consultees

We considered referencing rights-holders as one of the listed consultees for the development of guidance. However, based on the nature and limitations of statutory guidance and the experience of the development of statutory guidance in other policy areas (including UNCRC Act 2024 statutory guidance), we believe that statutory guidance may be very technical and specific to the relevant provisions of the Bill. It, therefore, may not make sense to consult on a large scale or to consult rights-holders in general. Additionally, 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.

We also considered listing other consultees, which are listed in relation to the Human Rights Scheme. This would mean listing the EHRC and the CYPCS. However, we believe that guidance may be more specific and limited in terms of scope and we do not think that requiring a more extensive and elaborate consultation process is desirable or necessary in all cases and would not ensure good value for money. In practice, if guidance is, for example, linked to issues such as PSED or children’s rights, allowing Ministers to consult with others they think appropriate would mean that Ministers could consult with the EHRC and/or the CYPCS as appropriate.