Human Rights Bill for Scotland: discussion paper
This discussion paper sets out the Scottish Government’s current thinking on a potential new Human Rights Bill for Scotland.
Footnotes
1 There was a delay to passage of the UNCRC Bill due to certain provisions being held to be outwith the legislative competence of the Scottish Parliament by the UK Supreme Court following a referral by the UK Law Officers.
2 The NPF, Scottish Government
4 Recommendations for a new human rights framework to improve people’s lives, FMAG
5 Taskforce: leadership report, Scottish Government
10 The Taskforce report used the term LGBTI, however this document uses the more up-to-date term LGBTQI+
11 Human Rights Bill consultation, Scottish Government
12 Human Rights Bill consultation independent analysis, Scottish Government
14 Equality & Human Rights Mainstreaming Strategy, Scottish Government
15 Treaty bodies recommending incorporation: CEDAW/C/UK/CO/6 (CEDAW, 2009) Committee on the Elimination of Discrimination against Women; CAT/C/GBR/CO/5 (CAT, 2013) Committee against Torture; CRC/C/GBR/CO/4 (CRC, 2008) Committee on the Rights of the Child. Treaty bodies recommending justiciable enforcement and effective remedies: CRC/C/GBR/CO/5 (CRC, 2016) Committee on the Rights of the Child; E/C.12/GBR/CO/5 (CESCR, 2009) Committee on Economic, Social and Cultural Rights; E/C.12/GBR/CO/6 (CESCR, 2016) Committee on Economic, Social and Cultural Rights; E/C.12/GBR/CO/7 (CESCR, 2025)
17 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 culture.
18 This term is used to collectively refer to CRPD, ICERD and CEDAW.
19 ICESCR Compliance Duty, ICESCR Consideration Duty, Equality Duty, Group Protection Duty and Healthy Environment Duty.
20 UN human rights treaties are often followed by Optional Protocols which set out extra provisions after the treaty was adopted. Optional Protocols are used to: expand on the obligations set out in the original treaty; address new and emerging concerns that the original treaty does not cover; or provide for procedures relating to the original treaty. They are called “optional” because they are not automatically binding on the State Party that signed and ratified the original treaty – if a State Party wants to be bound by an Optional Protocol it must sign and ratify it in the same way as for other treaties.
21 CESCR General Comment 9 on the domestic application of the Covenant, OHCHR
23 General Comments are intended to provide further guidance on how the treaties are to be interpreted and provide assistance to States parties to the Conventions in fulfilling their reporting obligations. They are not legally binding and provide guidance on how the articles of the treaties should be implemented.
24 Concluding Observations are recommendations issued by the relevant Committee following its review of a State party report. These contain its collective assessment of the relevant state’s record and recommendations for enhanced implementation of the rights in question. Like General Comments, they are not legally binding.
25 The principle of dignity (as in the inherent worth of the person) is a key feature of human rights treaties both internationally and regionally and is intended to ensure we all can live a life with dignity. It appears in the preambles of the UDHR, the ICESCR and ICCPR, CEDAW, CRPD and ICERD as well as a range of regional human rights treaties. It is also frequently used through the European system (ECHR) and has been raised in domestic case-law within the UK. It also features throughout international legal guidance, General Comments and recommendations, as well as the reports of special rapporteurs, and generally the international human rights monitoring and reporting framework.
26 As noted elsewhere, we are engaging with the UK Government on this.
27 Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.
28 This was referred to as an Equality Clause in the Taskforce report and an Equality Provision in the Human Rights Bill consultation. It is now referred to as a Duty to align with the rest of the Bill, however an equality provision (ICESCR Article 2(2) and 3 in the Bill Schedule) forms part of the overall Equality Duty.
29 The UN Committee on Economic, Social and Cultural Rights (CESCR) has interpreted “other status” in Article 2(2) to also include further grounds of discrimination. These are disability; age; nationality; marital and family status; sexual orientation and gender identity; health status; place of residence; and economic and social situation. This is set out in General Comment 20 of CESCR.
30 There were other additional grounds suggested for inclusion which are not in the treaties, and these are discussed in section 2.3.7.5.
31 CESCR General Comment 20 on non-discrimination in economic, social and cultural rights, OHCHR
32 The intended effect of the proposed Interpretative Provision is that the Courts may take into account the UN sources that include definitions or intentions.
33 Temporary special measures are positive action and non-identical treatment to progress equality of a protected group, such as: action plans; budget allocation; quotas; and measures to facilitate access and participation to all services and aspects of life.
34 The “equal opportunities” reservation means the Scottish Parliament cannot generally make law which is aimed at preventing, eliminating or regulating discrimination between persons on the grounds of certain protected characteristics (including sex, racial grounds and disability), unless an exception applies.
35 One exception to the “equal opportunities” reservation allows the Scottish Parliament to legislate to prevent, eliminate or regulate discrimination by certain public authorities in Scotland when exercising their Scottish functions (within certain parameters).
36 Which clarifies that the duty does not modify the EA 2010.
37 The EA 2010 uses the following protected characteristics as grounds for non-discrimination: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.
38 This could include people with lived and living experience of substance use and potentially people affected by substance use which aligns with the Charter of Rights for People Affected by Substance Use 2024
40 Which clarifies that the duty does not modify the EA 2010 or HRA 1998.
41 The majority of the rights in ICCPR have been given effect in UK law through the HRA 1998 (see the alternative approaches in the treaties and treaty requirements section for more details).
42 The ‘sufficient interest’ test requires an individual to “demonstrate a sufficient interest in the subject matter of the [judicial review] application”. Court of Session Act 1988 (legislation.gov.uk) section 27B(2)(a), as amended by section 89 of the Courts Reform (Scotland) Act 2014.
43 For further discussion, see briefing paper produced by Human Rights Consortium Scotland: Standing in Scots Public Law Litigation by Douglas Jack and Chris McCorkindale (June 2020).
44 Organisations may only enter proceedings under the HRA 1998 if they satisfy the ‘victim test’ per s7(1) HRA. Our proposals reflect the position under the UNCRC Act 2024 which means that parties can enter proceedings (or not) based on existing procedural rules, such as the ‘sufficient interest’ test in the case of judicial review.
45 ‘Specific implement’ is a court order requiring a positive act of performance as a remedy. Specific implement is most often sought as a remedy under contract or common law, but could be sought and granted in response to breaches of Bill duties, subject to procedural rules of the type of action in which the duties are being considered.
46 This test was set out in the case of Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 K.B. 223. Under the ‘Wednesbury test’, a decision may be found to be unlawful only if it is so unreasonable that no reasonable decision maker could have reached it. This is a high bar for a rights-holder to overcome.
47 The ‘proportionality’ test under the HRA 1998 involves assessing whether any restrictions of a qualified right by a decision-maker are a proportionate means of achieving a legitimate aim.
48 I.e. the duty to progressively realise ICESCR requirements and meet minimum standards.
49 The Human Rights Bill consultation (2023) proposed provision to require a ‘statement of compatibility’ (see pg. 50 of the consultation). For reasons outlined in this chapter and subsequent to further development of proposals following the 2023 consultation we are now using the term ‘statement of compliance’ to reflect the nature of the Bill’s proposed Compliance Duty.
50 per s29(2)(d) Scotland Act 1998
51 Update to SPSO Statement of Complaints Handling Principles, SPSO, [consultation now closed]
52 Child Friendly Complaints Handling Principles, SPSO
53 Child Friendly Complaints Handling Process Guidance, SPSO
54 Northern Ireland Act 1998, Section 69A, and Equality Act 2006, Schedule 2
55 Human Rights Bill Advisory Board, Scottish Government
56 Human Rights Bill Executive Board, Scottish Government
57 Human Rights Bill Implementation Working Group, Scottish Government
58 Human Rights Bill Lived Experience Board, Scottish Government
59 Participation handbook, Scottish Government
60 Human Rights Based Approach, Scottish Human Rights Commission
61 Human Rights Incorporation & Implementation Oversight Board, Scottish Government
62 Capability Building Working Group, Scottish Government
63 Which remains subject to competence considerations
64 Which remains subject to competence considerations
Contact
Email: HumanRightsOffice@gov.scot